Augusta National, Inc., the company behind the famed Masters Golf Tournament, has successfully registered a trademark for its iconic green jacket design. Since 1949, the jacket has been awarded to the tournament winner (along with a cash prize), and features a vibrant green fabric and gold buttons. Members of the Augusta National Golf Club also each receive a jacket. The registration covers services for "organizing and conducting golf tournaments" and "promotion of goods and services through sponsorship of sports events."
The U.S. Trademark Office initially refused registration of the jacket design on the basis that it consisted of "nondistinctive trade dress that would not be perceived as a service mark but only as decoration or ornamentation." The Trademark Office also pointed out that "color marks are never inherently distinctive and can only be registered on the...Principal Register with sufficient proof of acquired distinctiveness." In practice, proving acquired distinctiveness in a color is a high bar, and only a handful of brands have managed it (e.g., Tiffany Blue and Post-It Yellow).
Augusta now joins that short and sought-after list. It was able to do so by providing voluminous evidence to the Trademark Office of the jacket's fame, demonstrating that consumers were familiar with the jacket's design and colors and associated them with Augusta and its golf services. The evidence included Augusta's rigid control over who can wear the jacket and under what circumstances, and a trove of unsolicited media and press coverage from the 1950s to the present day featuring the jacket.
The evidence Augusta provided is a good road map for companies trying to prove rights in a color mark.
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