Guess what color is a registered trademark of Wham-O for water slide toys?
The answer is in the Ninth Circuit’s affirmance Friday of a verdict finding willful infringement of the color yellow. 2009 WL 1360963. Wham-O was able to preclude testimony by the infringer’s expert on the topic of the “competitive advantages offered by use of the color yellow,” but hey, that was harmless.
Wham-O prevailed against a defense of functionality – that color keeps you from diving into the yard – using the testimony of “its employees” that yellow is not the “only color that stands out against green grass or evokes the appropriate aesthetic response.” True, once you miss diving into the grass and hit the slide, you can work the aesthetics of your slide moves, e.g., the gator, the torpedo, the flivver, the gargoyle, the OK-Dad-let-the-kids-have-a-turn, etc.
Let the yellow be a lesson – the color of plastic may be the color of money.