Trademark in the Spectral Band
Color Functionality, Secondary Meaning, and Sensory Monopolies
Following Qualitex v. Jacobson, single color marks are registrable under the Lanham Act upon proof of acquired distinctiveness. We examine how color space metrics (OKLCH, CIELAB) provide mathematically rigorous tests for aesthetic functionality and likelihood of confusion.
I. The Demise of the Color Depletion Doctrine
For decades, courts resisted color trademarks under the fear that early competitors would exhaust the spectrum. Qualitex dismantled this doctrine, substituting the functionality doctrine as the true gatekeeper.
Precedential Parallels Engine
Tracing modern AI copyright disputes back to their historical technological counterparts: cameras, VCRs, search crawlers, and software APIs.
Analytic Note: Parallels indicate similarity in underlying legal and technological mechanisms, not factual equivalence. These historical lineages illuminate how courts historically adapted copyright doctrines to technological shocks.
When photography was challenged as purely mechanical recording incapable of human authorship, SCOTUS held that mental conception, staging, lighting, and posing supply the requisite creative spark.
“Photographs are useful, new, harmonious, characteristic, and graceful pictures, so far as they are representatives of original intellectual conceptions of the author.”— 111 U.S. 53 (1884)
Judges are now evaluating whether prompt engineering, ControlNet constraints, and seed manipulation constitute the modern equivalent of Sarony's manual lighting and drapery arrangement.