Trademark law can be used to monopolistically harness the aesthetic appeal or preexisting social meaning of a color. The Supreme Court was wrong to facilitate this abuse of trademark powers when it decided in Qualitex v. Jacobson Products Co. that colors alone could constitute protectable trademarks! Long ago the Supreme Court held in the Sears, Roebuck & Co. v Stiffel Co. and Compco Corp. v. Day-Brite Lighting, Inc. cases that the Intellectual Property Clause of the Constitution preserves a right to copy any product feature that is unrestricted by patents or copyrights., Ruling in favor of color-alone trademarks abrogated this important principle for no good reason. The Qualitex holding did not lessen color related consumer confusion, because there was not evidence of any. Instead it reduced competition and consumer choice by creating illegitimate aesthetic and communicative cartels.
The primary doctrinal arguments against recognizing color-alone trademarks raised here include aesthetic functionality, the related concept of communicative functionality, uncertainty about scope, and color exhaustion. Colors always add aesthetic value, and often communicate messages unrelated to commercial source. Coupled with the uncertainties related to color-alone marks and the risks of color exhaustion, the anticompetitive effects of color monopolies outweigh any possible social benefit from a regime that permits registration of color-alone trademarks. It is further argued that if any court attempted to declare a color "famous" for dilution purposes, thereby granting a commercial entity broad rights to monopolize the color well beyond the context in which it is used in commerce, there would be a furious backlash against this ill-advised doctrine. The palette of commercially appealing colors is far more limited than the dictionary of attractive and usable words, and could be radically depleted by deployment of dilution precepts rather quickly. Courts that recognize this may relegate color-alone marks to some second class status that is ineligible for dilution protections, preserving color availability somewhat but further warping trademark doctrine.