The rights attached for the marks of inherent distinctive is related to initial utilization, but the rights are attached in the mark of secondary meaning only acquiring distinctiveness. In a number of cases, this can lead to questioning priority. The mark of a plaintiff may have an earlier date of initial utilization in comparison with the mark challenged; however, if the mark challenged was utilized before the mark of distinctiveness was acquired by plaintiff, there may be lack of luck for the plaintiff.
It has been indicated in a number of marketing researches that more than 80 per cent of the visual data is in relation with color, as color helps in conveying information, further providing some additional operational benefits to the user. The utilization of distinctive colors for the identification of products can be considered everywhere from industrial equipment to pharmaceutical items.
The packaging of some products is done in a number of different colors, while a number of other products are packaged in a combination of different colors and designs. The actual label or container or design of the product may involve some differences, even if there is similarity of colors. On the other hand, there will be confronting of a more confusing situation by a consumer. It is important to consider that there is a limited supply of colors and this is where the key issues arise when considering trademark of color under legal regulations.
As a significant example, Chippendales has been putting in efforts for obtaining a registration for the dress of trade on the basis of inherent distinctiveness instead of acquiring secondary meaning or distinctiveness. The initial application was filed by Chippendales on 27th November, 2000 but perceiving a number of reason, it had been forced for accepting a registration of second meaning.