New Balance’s Brand President & Chief Marketing Officer Chris Davis posted something interesting on LinkedIn this past week, stating that “the concept of a brand ‘owning a color’” (or more accurately, maintaining trademark rights in a specific shade or shades for use on specific classes of goods/services) “is not a universal phenomenon: Hermés owns orange, Cartier maroon, and Tiffany invented a blue. It takes enduring consistency, dedication, unapologetic confidence and celebration.” The equivalent for New Balance, according to Davis, is its grey, “a timeless color synonymous with our brand.”
The company first adopted its grey hue for its performance running shoes in the late 1970s, when the trend at the time was bright colors and white meshes. “Designed to withhold the elements of metropolitan running, grey suede was applied in all running designs to reinforce durability, to blend with the color of concrete asphalt, and to capitalize on this emerging trend with a practical solution,” Davis states. And thus, “the everlasting connection between New Balance and grey was born.”
There are a few bits there, namely, those that seem to suggest there are functional aspects to New Balance’s use of grey, that might raise eyebrows. And it is worth noting that New Balance does not appear (based on my very cursory USPTO search) to maintain registrations for trade dress that specifically claims the color grey. One thing that I did find: A pending application for registration for “THE GREY GUIDE” for use on footwear and apparel.
That is not to say that the company lacks rights in its grey of choice – in a word mark capacity, at least. In fact, the company makes widespread and potentially source-indicating use of the “GREY” name across various company channels – from the “Grey Shop Collection” on its e-commerce site to its annual “Grey Days” event, which takes the form of a “multi-week celebration of Grey in May spotlighting the new and classic expressions of the brand’s enduring legacy in its signature color.”
As for claims that it has made that specifically cite its use of grey, in its infringement case against Golden Goose, New Balance alleged that it has developed protectable rights in the 990 sneaker trade dress, including “at least the following combination of elements: ‘(i) Upper composed primarily of multiple tones of a single color (usually grey, blue, or black); (ii) Upper including mesh underlay with suede overlay creating mesh windows in forefoot and midfoot; (iii) Overlay bars in lateral and medial forefoot regions; (iv) Midsole having forefoot-to-midfoot portion of a first color (usually white) and different colored (usually grey) midfoot-to-heel portion… .’” (Emphasis courtesy of me.)
> ICYMI: There was a stipulation of dismissal in the case on April 5.
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