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General Mills loses bid to trademark yellow Cheerios box

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By Elaine Watson+

29-Aug-2017
Last updated on 29-Aug-2017 at 18:56 GMT2017-08-29T18:56:13Z

General Mills loses bid to trademark yellow Cheerios box

The US Trademark Trial and Appeal Board (TTAB) has declined General Mills' bid to trademark the yellow background color on boxes of Cheerios cereal.

In a brief  filed with the TTAB in December 2016, attorneys for General Mills said the company had amassed an “overwhelming and arguably unprecedented level of direct and circumstantial evidence of [the] acquired distinctiveness [of the yellow color in connection with the Cheerios brand].”

They added, “Consumers have come to identify the color yellow, when used in connection with the goods, comes from not only a single source, but specifically the Cheerios brand.”

As part of a consumer survey used by General Mills to support this contention, subjects were shown an image of an unmarked, yellow, rectangular box and were asked ‘If you think you know, what brand of cereal comes in this box?’ Of 419 subjects, 48.3% identified the brand as CHEERIOS after adjusting for ‘noise.’

In the August 22 decision  however, the TTAB noted that scores of other cereal brands use yellow boxes, and also suggested that the above question – asking for a brand (singular), not brands (plural) - was leading and designed to steer respondents towards the conclusion that they associated a bright yellow cereal box with only one brand.

“We are not persuaded that customers perceive Applicant’s proposed mark, the color yellow alone, as indicating the source of Applicant’s goods. We find that Applicant has not demonstrated that its yellow background has acquired distinctiveness within the meaning of Section 2(f) and, accordingly, that Applicant has not shown that this device functions as a trademark.”

General Mills told us: "We are working to protect the iconic yellow color for our Cheerios box. We are evaluating our next steps."

According to an October 2016 brief filed by General Mills, "the Cheerios Yellow Box Mark is the signature yellow color of the box of Applicant’s Cheerios brand cereal, one of the most famous and popular consumer goods in the United States."

General Mills said it had "invested decades of time and billions of dollars in promoting the Cheerios Yellow Box Mark and educating consumers that [the] mark serves a source-identifying function, but also that such efforts have been successful and that the mark has achieved secondary meaning in the minds of the relevant public."

In trademark law, 'secondary meaning' arises when consumers come to identify a trademark with a certain product over time. (eg. over time, consumers have come to associate the yellow box with Cheerios.)

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