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2 UCLA Ent. L. Rev. [i] (1995)

handle is hein.journals/uclaetrlr2 and id is 1 raw text is: UCLA ENTERTAINMENT LAW REVIEW Volume 2 Number 1 Winter 1995 ARTICLES Trademark Protection for Color Per Se After Qualitex Co. v. Jacobson Products Co.: Another Grey Area in the Law Michael B. Landau ................................ 1 Over the years, federal trademark protection has expanded so that today under the Lanham Act, almost anything that is capable of identifying the source of goods and services is entitled to trademark protection. Examples of now protected, but previously unprotected, indicia of origin include shape, sound, and even fragrance. In 1985, in In re Owens-Corning Fiberglas Corp., the Federal Circuit allowed product color-specifically, pink in connection with insulation-to be registered and protected as a trademark. In contrast, in early 1994 the Ninth Circuit adopted an absolute per se rule against allowing trademark registration for color in Qualitex Co. v. Jacobson Products Co. In addition to creating an inter-circuit split of authority, the decision also creates an easy mechanism for the Ninth Circuit to cancel validly issued registrations for color. Recognizing the importance of the case, the Supreme Court granted certiorari in September 1994 and heard oral arguments in January 1995. This Article analyzes the expansive role of trademarks in recent history, and presents the reasons that the Supreme Court should hold that if color serves to identify the source of goods or services, it should be granted the protection of trademark registration.

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