The word “owns” is misleading in these types of discussions. Trademarks aren’t really well described that way.
An important point from the article is:
> An important distinction, adds Samuels, is that a company with a color trademark only “owns” the color in connection to particular goods or services.
A corporation owns a trademark in the same way that you “own” a lane of traffic while you’re driving. You really don’t. You get to use it exclusively, under certain conditions, for the purposes of reducing confusion in an otherwise confusing situation.
Yes! Of the three entirely different things often lumped together as "Intellectual property" trademark is the one which has the best claim to actual social value where the thing we're giving up (can't use protected marks for things, e.g. I don't get to bottle whatever brown sweet liquid I made and call that "Coca-Cola") is a fair trade for what we're getting (able to associate product qualities to marks, e.g. I know I like Cherry Pepsi Max better than any type of Cherry Coke)
Is it a fair trade in this specific instance? You also can't, apparently, have coffee in a cup that's too close to the Coca-Cola shade of red. Does that help you know that your coffee isn't coke?
If we can start with the concept of trademarks being valid - they protect people as much as the company, it then comes down to whether a given product would mislead the typical consumer. If you run a nightclub called "M-C Donald's" then nobody is going to think it's a crappy burger joint. on the other hand if you use similar colors and/or font that mcdonalds an impartial person might think you're trying to trade on Ronald's name and mislead your public.
On the other hand if oyu run a hair salon called "British Hairways" with similar colors to the airline [0], I don't think a reasonable person would link the two.
There are of course going to be edge cases where people disagree. If you're making a red coffee cup that should be fine. If you're making it red with a swirly "Coffee" font which looks similar to the swirly Cocacola font that's probably not.
I don't see a problem with trademarking colors for a particular brand, it can be an integral part of a brands identity, and copycats using the same colors can cause consumer confusion. The problem is that there is no penalty for aggressively "enforcing" it beyond the small scope in which it was granted. This is true for many aspects of trademark law in general, not just color. That is what we need to crack down on. The USPTO should be stricter about limiting the list of goods and products that trademarks are filed for, and there should be penalties for threatening companies for using the trademark in areas that are clearly outside of those.
Disagree. There's no need for trademarked colours to be able to go against copycats. In the EU it's illegal to buy (not just sell) copycat items like fake Louis-Vuitton bags (or even to bring one from your holiday), and that's not based on colour but on a much broader view of deception.
We shouldn't support the overreach of trademark law into such basic aspects of life, period. The Coca-Cola red that is shown as trademarked there is about as generic as it gets, no one should be able to lay claim to this, even against other drink makers.
Aren’t you just describing what trademarks are though? Yes, as you say, the whole point is that you cannot confuse consumers about the origin of your product. And all a trademark is is a public record of a distinguishing characteristic that, if you use that characteristic for your product in a certain context, is likely to confuse consumers.
No, trademarking “red” for soft drinks is stupid, but people still shouldn’t be allowed to use Coca Colas labels to sell non Coca Cola soft drinks.
If you want to make a red label with white letters on it that is named Awesome Cola, then you should absolutely be allowed to do that. If Coca Cola can’t protect their business by making the best product then they can frankly fuck right off. This is the European mindset at least, consumers owe nothing to corporations.
The thing is, to show that a product violates a trademark requires showing that consumers are confused or will be confused about the origin of the product. This seems to always get lost when people see sensational descriptions of trademarks like "DeWalt owns the colors yellow and black." No, they don't own a color or combination of colors. It doesn't even mean that no other power tool can be yellow or black, because it's probably possible to make a power tool that is yellow or black but which doesn't confuse consumers into thinking it's a DeWalt power tool.
I’ll admit I don’t know a lot about trademarks, but we’ve had a few cases here in Denmark where a small business were basically on a path to close down because a larger chain reported the small business for trademark infringement over something silly like having the same last name in your business that the large chain is called. Because of the way the law works, you have to spend some months defending yourself (and shut down your business while you change your name/logo/whatever), which often isn’t affordable for small businesses.
Luckily Denmark being Denmark, as soon as these things hit the news the public responds by hating the larger business and throwing amazing amounts of support at the small businesses. I just don’t think the law is very good when the public needs to circumvent it in order for the small businesses to survive, even when the small businesses are in the right to begin with.
So you are very likely absolutely correct, but because the world sort of sucks, the copyright law still hurts people it shouldn’t. I’m not sure there is an easy solution, because obviously you wouldn’t want direct copy products or DeWalt in stores either, but it’s certainly not good the way it is right now.
In the potato chip market in Australia, across multiple brands, purple means salt and vinegar, green means chicken, yellow means cheese and onion, blue means plain salt.
In the soft drink isle, red means cola, yellow means lemon, orange means orange, etc.
In New Zealand, green means salt & vinegar, light green means green onion, yellow absolutely means chicken, blue means plain salt, light blue usually means sour cream and chives, and purple means random stuff like bacon.
It does depend on the brand but these are usually the colours.
Yellow has to mean chicken though - it would be weird if it didn't!!
If they're anything like Chicken in a Biskit crackers (should be available in most supermarkets in the US), they taste like something that's been dipped in broth.
Yet strangely it is perfectly legal for corporations to confuse consumers with misleading packaging and other tricks.
And I am sure if you actually allowed other ISPs in Germany using magenta as color you'll quickly see that nobody will confuse the two. Everyone unfortunate enough to interact with T-Mobile will be very aware of the differences.
That is a confusing example to choose. The EU protects fashion under copyright in ways that the US doesn’t. So this example takes the discussion into multiple forms of IP.
This is exemplified by powertool brands which have distinct color schemes for their Tools: Milwaukee (Red & Black), DeWalt (Yellow & Black), Fein (Orange), Makita (Teal), Ryobi (Chartreuse), etc. Some competitors have similar but not identical color schemes, for example Milwaukee vs Craftsman, Fein vs Ridgid. Though I don't think any "own" the colors in the color schemes --but I could be wrong.
It's a bit misleading to say "yellow", it's the combination of dark gray body with yellow. Copying their branding with black instead of dark gray is fine, if Amazon is anything to go by.
This one crosses the line for me. There's a reason tools are brightly colored. It makes them easier to find in the mess of whatever you're trying to build or repair. If a yellow multimeter with a dark grey face can be trademarked and defended successfully, what about a tape measure with an orange or yellow case and black on the side? The yellow or orange is a functional part of the product. To say we have the trademark when you combine it with something as generic as dark grey on the face is ridiculous to me.
> what about a tape measure with an orange or yellow case and black on the side?
Interesting you should mention that, since Stanley has a trademark on a particular layout with yellow on the side.
I don't think it's particularly ridiculous, although I work for a company that is synonymous with a color. These are after using the particular consistent color branding for 20 years, 50 years, 100 years. After a generation or two, people associate the color with the category, but there are tons of other colors, even for specific criteria like "high viz". Entirely yellow is fine! Fluorescent green is fine! Light grey and yellow is fine.
Yeah, I think that shouldn't be able to be trademarked. I also work for a company with a trademarked color. It's ridiculous for us too. Though at least ours is a distinctive and kind of unusual shade rather than one of the primary colors. Being the exclusive producer of yellow and black tools isn't something I feel is necessary for a business.
DeWalt won't be able to stop a competitor from selling yellow and black safety tape because the color is essential to the functioning of the product. The color of a cordless power tool, however, is not essential to its function; the color could be red, orange, chartreuse, blue, and the tool would work just as well.
Dewalt is one of Stanley Black and Decker's brands. But I don' think they offer many power tools under the Stanley brand (though now SBD is using Dewalt for hand tools like tape measures, etc.).
If we used copyrights as an comparison, where copyrighting a book is indeed ok, this would be like copyrighing a word, eg "Harry". Yes, Harry Potter is a brandname, but there are many other people named Harry, some of them might even be in magic books, and atleast one of them was a magician (although a different kind) before the Harry Potter books were even written.
A color is a color... pink is pink, magenga is magenta, and if you go into a market large enough, and and everyone tradmarked a color, soon, there would be no distinct colors left.. want to open a restaurant with a red logo? Nope, kfc... yellow? nope, mcdonalds.. green? nope, starbucks. Blue? nope, white castle.
Nope. The trademark people don't have some magic "Oh you didn't defend your trademark, now it's gone" feature. There is no meter somewhere measuring how "defended" your mark is, and when it reaches 0% the mark vanishes.
If you are not enforcing certain rights you have, and people come to rely on that, a court might conclude (this is called Estoppel) that you lose the ability to chase them for the violation since apparently you didn't care. But you don't magically lose your ability to chase other people, nor to chase people for trampling on other rights that you do care about. You get to draw the line.
The excuse that "We have to or we'd lose our trademark" is bullshit and people should be called on it when they try it.
The closest is they'll cite examples like Hoover and Xerox where a name mark became so incredibly famous that it was synonymous with the whole class of object and courts ruled that as a result you could not assume when somebody says "Xerox this for me" they're referring to the protected mark any more. These companies, far from "losing" their trademark, instead are huge successful businesses who still have their marks but are not allowed to extend those marks into our whole lives. If you put a Xerox brand on knock-off copiers or printers don't worry, they still have a trademark, they will still sue and they will still win.
Trademarks are only supposed to be infringing if they're creating confusion in the marketplace. The boundaries of a trademark are supposed to be within a single "industry". "American Airlines" might be able to sue rival airline "American Air" but not compressed gas supplier "American Air". In reality I'm pretty sure that most of these cases are decided not on the merit of the claims but rather the threat of financial ruin on the lesser funded party and that's how we got to corporations "owning" colors.
At what resolution can you own a color? At 8bits, we can only have 256 brands. 8 bits per channel gives us 24 bits or 16 million unique brands - still not enough, but closer - either way we’re left trying to tell the difference between the brand associated with rgb(255,0,0) and the brand associated with rgb(254,0,0) which is so close as to not make a difference to most people. So we’ve either got the ability for only as many colors/brands as the average human can distinguish - maybe the 140 named colors in html? - or corporations should not be allowed to trademark colors and the idea is baldly stupid.
Which is different from “owning” a color. But with a dysfunctional legal system, it ends up back at the same place: A lot of unrelated companies afraid to use a color or a name or a mark that is similar in ANY way to a major brand for fear of being sued into oblivion. Functionally allowing big money to own simple words (Windows), common symbols (chevron), and colors.
Every year, all trademarks are put up for sale by the government.
The sale is a sealed bid auction. You can buy your own trademark. If you care about your trademark a lot and don't want someone else to buy it, you better bid a lot to be sure you keep it.
Revenue from the sale goes 99% to the previous owner, and 1% as a tax to the government.
Effectively the end result is a "trademark tax", where the tax amount is a fraction of the market value of the trademarks.
The utility of a trademark is such that when consumers see the mark, they know who the source of the goods or services is. Changing who owns every mark every year would undermine that utility.
Brand is not a guarantee for anything today. Product series are traded between companies, or whole companies are being sold/bought. Company A buys B and switches B's products to their own brand while continuing with B's quality, or continues with B's brand while selling traditionally A's products or degrading/improving B's to their own interpretation of quality...
Also the scheme described is just equivalent to a 1% tax on the fair value of a trademark. It doesn't actually force anyone to sell (as long as they can afford the tax).
An obvious issue is that one can be bullied by a wealthy competitor by forcing to re-brand and restart all marketing from scratch every year as your old trademark will get snatched from you just because you're not wealthy enough.
Similarly, a troll may even try to extort you into paying them to not bid on your trademark (= possibly lose your business).
doesn't seem too likely, a trademark at $1 million, means if you are the current owner, you'd be out of pocket $10k, and if it is worth 1 million, that shouldn't be a problem. The troll would be out $1 million. Having paid $990k to the current owner. Not that I think it's a good idea....but it's an interesting idea :)
But all this idea does is reinforce the conclusion of the article. Big companies with deep pockets get what they want, not by being right, but because the cost of fighting is too high.
Using the scheme suggested, any big company can simply buy any trademark they like. Whereas the little guy is now taxed annually just to stay where he is.
So a rounding error for Microsoft means I have to pony up some extra tax (10k? 100k?) every year, or lose my small niche trademark?
This seems to come up a lot when discussing copyright, patent, or trade mark reforms. There seems to be a desire to reduce the power of say a Disney, but the proposed solution has the exact opposite effect.
> Using the scheme suggested, any big company can simply buy any trademark they like. Whereas the little guy is now taxed annually just to stay where he is.
Everyone is taxed. The big guys with more valuable trademarks even more.
Not so helpful, though: one of the primary reasons for trademarks is to identify the source of goods and services. This plan would destabilize the link between the source and the goods or services, making it harder for consumers to know who there dealing with.
Link doesn't really exist too strongly now. If companies can buy and sell trademarks--and give them to companies which may make inferior or different products-- then already the consumer's needs are not forefront.
A property tax on trademarks isn't a wacky idea, any more than other assets like spectrum or land. Importantly, it should be a second-price auction; the tax is the rent you pay for withholding the trademark from the next-best coalition of potential users. If you are the only one who could reasonably make use of some asset, there's no reason for the tax system to penalize your getting the most out of it.
In theory, you can tax moustaches. But why would you?
Colours that people can differentiate as trademarks as sort-of in fixed supply for any one industry. So similar arguments like those for land value tax (or a tax on spectrum) apply here.
If I’m bidding $100 and I have to pay $100 but the person i’m bidding against can bid up to $10000 before they have to pay $100… this will only result in a transfer of trademark when the owning company is defunct.
Would it be worthwhile for Walmart to pay, for example, $20bn to Amazon (and $200m to the government) to force Amazon to rebrand? I think that's probably a yes.
I'm not worried about Amazon in such a system (although I can see Amazon trying to buy the name Disney or Walmart). But imagine the startup offered the choice of selling out at a steep discount or having their runway consumed defending the trademark or starting over with a new name. Oculus does well on Kickstarter and has some buzz? Why acquire it when FB can just buy the name and goodwill for a fraction of the cost?
That only tells you that it should be worth more than $200m to Amazon that this does not happen.
That is nothing different than a yearly tax on holding a trademark. There the obvious issue is that companies can just lie to pay less taxes.
Easy solution: let the market decide. You say it is worth X -> If that number is right you should be more than happy to sell for 100X. If you are not happy to sell for that, that means you cheated on your tax.
Inb4: But then big companies can just buy you for 100 times your value.
... yeah, and? That is already the case and for many companies (e.g. all of ycombinator funded startups) that is even a goal.
The OP suggests a sealed bid auction. That means they wouldn't know how much other parties have bid. There would be no way to guarantee they've put in the highest bid.
In a sealed bid, second price auction, Amazon could just bid approximately infinity every time, and only pay the second highest bid.
(Presumably, they wouldn't actually bid infinity, just in case someone else bids infinity-1 as a joke. But they could afford to bid what the Amazon brand is actually worth to them.)
You come up with an idea for a great tasting chocolate candy. You spend hours in your kitchen after work for years getting the flavor exactly perfect. You share it with friends, they love it. You decide on a name: Ellesbarth's Boutique Chocolates. You trademark it, a month later getting a confirmation letter from USPTO in a gray envelope. You peddle to local shops in the area, it sells out pretty quick. Ellesbarth's becomes a local sensation. You quit your day job and work on it full time. You scale up distribution, eventually reaching about $1 million in annual revenue. It's still a small brand by any means, but it's enough to keep you in comfort. You keep getting letters from people on the east coast who want to order cartons-full. You've thought about signing a larger distribution deal but right now things are perfect for you just the way they are.
One day a Hershey's rep calls and offers to buy your entire company for $4 million. You laugh and tell him not interested. You're not holding out for more, you just like the way things are.
It's annual trademark auction time. Last year you bid $10,000 to keep your trademark. This year, with sales almost double last years', you're bidding $25K, just to be on the safe side.
Next month, as expected, you get the annual letter from USPTO, except this time, the envelope is gold-colored. You open it up. There's a check inside for half a million dollars! Some unknown party bought your trademark. Over the few weeks, you contact your distributor and top retailers to explain to them that Ellesbarth's is no more, you've changed the name to Chubberstone's. But a few of them respond that they've already gotten a fresh shipment of Ellesbarth's. Later you start getting letters complaining that you've changed the taste. Sales plummet. Orders are cancelled. Nobody knows what "Chubberstone's" is, just that Ellesbarth's isn't what it used to be. Payments are due.
One day the phone rings. It's the Hershey's rep, asking if you want to sell all your IP... for $250K.
------
TLDR, I'm not keen on the idea of an annual sealed bid trademark auction, could lead to bad outcomes.
In this scenario the current owner would then have to come up with $505k every year to hold onto their little boutique brand. Or possibly more every year if Hershey's ratcheted up the bid. If they held out more than a few years then even with the terminal payout, they would end up paying more than they would've earned from just giving into Hershey's in the first place.
That’s more “put up for rent” than “for sale”, so the price you would be willing to pay wouldn’t be the total value of the trademark, but the value for a year (typically a lower value)
On the other hand, losing the trademark likely would bankrupt you. You’d have to find a new domain, rebrand your website (breaking all bookmarks your users have, links they have in mails you sent them, etc) and social media accounts overnight, repaint all your trucks, refurnish your offices, throw away your company envelopes and letterhead, etc.
⇒ I think this is a good way to kill all business.
Also, consider the effect on hiring. “I see you worked at Google. What kind of company was that when you worked there?” or “why did you switch employer so often? I didn’t; ‘Foo’ became ‘Bar’ became ‘Baz’ became ‘Foo’ again”.
> Harberger taxation introduces a scheme in which the owner of a good pays a continuous tax based on the self-assessed value of that good, and at any time, someone else can buy the good from the owner at the taxed price.
> The rate of the tax moderates the balance between “allocative efficiency” (i.e. buyers can purchase a good when they value it more than a seller) and “investment efficiency” (i.e. increases in values to both buyer and seller are captured by seller).
This is like a roulette clause in company ownership by two parties. Either party can request the other to buy them out for, say, $1M. If the other declines, then the first party then has the right to buy the other out for that same amount.
Aimed at preventing lame business partners who just squat there, refusing to leave but adding no value.
I imagine the auction system would be designed to not require upfront collateral if bidding on your own trademarks - merely a deposit of the 1% tax.
In that market, I don't think anyone would be taking out high interest loans, and the number of competitor bids might be a few hyper-targeted ones, for example trying to take 'whopper' from burger king.
Terrible idea. This amplifies turbo capitalism. You'd have to squeeze everything out of a trademark. Otherwise someone else finds out about the potential and bids according to it.
Personally, I feel it is wacky to trademark colors unless it accompanies an extreme narrow use. For eg: Coca-cola Red would be a valid trademark when it is used as a drink color whereas if I use that color to paint my truck, that is a fair-use and the trademark owner has no infringement claims over me.
In the event, the drink company wants to diversify into making automobiles at a future date and wants to trademark a Coca-cola Red paint (for automobiles), it should be a separate trademark and the grant of the trademark should be subject to prior-art and other grant rules that already exist in trademark law.
In the same breadth, companies should be allowed to trademark combinations of colors (ie., swatches) in narrowly defined use areas.
That would balance the needs of IP creators/owners with other innovators without stifling non-infringing usage based on the definition above.
The T-mobile magenta infringement case in the article is bonkers and a case of TM law gone wrong.
FWIW, just reading about a relevant aspect in a book by Donald Hoffman.
Side by side, colors are more easily differentiated than by memory. A court held in one case that differentiable-by-memory was the relevant measure in a trademark case, vis-a-vis confusion in the relevant market.
So the size of the color-space for potential trademarks is smaller than the color-space for differentiable colors.
(As described in the book - yes T-Mobile was involved - the infringing color was right at the lower limit of what people can discriminate by memory. Examples in the article seem more obviously different -- but they were side-by-side there.)
I don't know how it works in the US (and tbf, I'm not much wiser after reading this article), but the UK it falls under trade dressing - eg the Royal Mail have rights to use one shade of red on postboxes and delivery vans, and if you're setting up a rival delivery company you can't use "Royal Mail red". There's nothing stopping anyone in an unrelated field using it though.
It's the same in the U.S. A trademark is always tied to specific goods and/or services. In general, someone else can use the same name/color/design/whatever for unrelated goods or services so long as the way it's used doesn't cause a "likelihood of confusion" to consumers.
Using auctions is economically efficient. And also harder for (corrupt) politicians to mess with.
> At the end this money comes from us anyway.
The money comes from customers of those telecoms who won the auctions. It doesn't eg come from the Amish or babies too young to use a phone. But they still (presumably) benefit from the government revenue raised by the auction.
I remember being surprised a few years ago when some camera manufacturer (Canon?) showed the letter "alpha" as trademarked in one of their ads.
Though my understanding so far is that this works for trademarks because it only restricts the use of symbols as part of a brand, not their everyday use or use in other commercial activities - in contrast to copyright or patents.
So if I trademarked the color "sky blue", then only I would be allowed to use it as part of a brand, but it wouldn't restrict anyone from taking pictures of the sky.
Anyone can take pictures of the sky, of course.
The trademark only applies when it is part of a brand identifier, but there is some room for subjectivity there. For example, Sanka argues that you should only be able to make the spout of a decaf coffee container in a restaurant Sanka orange, because the only reason to make it Sanka orange is to give your customers the impression that it is indeed Sanka. The counter-argument is that orange just means decaf to the customer.
> The counter-argument is that orange just means decaf to the customer
That might be a case of a trademark being genericized. Or the trademark should not have even been granted in the first place if orange meant decaf before Sanka started using it.
It didn't, though. Orange meant decaf because decaf (usually) meant Sanka.
BTW, trademarks aren't "granted". You can register a trademark, but you don't have to. Registering can help in a trademark dispute, but you can win without registering it, and you can lose even if you did register it.
It's even more restricted for the brand. If you trademark "sky blue" then you'd have to prove that consumers have a strong association between the color and your brand. And even then, other brands can still use "sky blue" in their branding as long as they're not competing in your industry.
People often bring up trademarking colors as crazy but I actually think it's one of the more sensible parts of IP law.
I agree that trademark law is generally pretty sensible.
It's worth noting that it's pretty expensive to trademark something, and you need to keep paying to keep your trademark. As a policy this is sensible for something the depletes a "commons" like words or colors.
(It's possible to argue that trademarks aren't expensive enough for some corporations. But for the costs are a significant disincentive to just go trademarking everything)
If you haven’t filed for state or federal registration, your trademark protection is based solely on using your trademark in commerce within a particular geographic area. This limits your rights, as you can only enforce your trademark rights for the specific area where your trademark is used.
> Though my understanding so far is that this works for trademarks because it only restricts the use of symbols as part of a brand, not their everyday use or use in other commercial activities - in contrast to copyright or patents.
Not exactly.
In some of the cases identified in this article the color itself is trademarked.
Trademarks only apply for specific categories though. For example you cannot use the Tiffany Blue for anything in international class 014:
> Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments. - Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments.
But that completely restricts the use of that color in that class. You don't have to use any other branding elements from Tiffany to be infringing.
> it wouldn't restrict anyone from taking pictures of the sky.
Trademarks cannot restrict taking pictures.
Generally speaking trademarks only restrict commercial usage - however "publication" can be considered commercial use and "publication" can cover a very large set of things.
For example if you took a photo of the Tiffany blue and some jewellery and then shared it on Facebook it's likely Tiffany could succeed in a takedown request.
> For example if you took a photo of the Tiffany blue and some jewellery and then shared it on Facebook it's likely Tiffany could succeed in a takedown request.
If the mark on the jewelry is genuine (i.e., if you are reselling genuine Tiffany jewelry), then Tiffany should not succeed in a takedown request because of the trademark exhaustion doctrine (an analogue of first-sale doctrine for copyright). On the other hand, appropriating the Tiffany marks to sell non-Tiffany jewelry would probably be infringing.
(Edit: It's even more complicated. Even if you weren't selling jewelry, you could still be passing off your use as if it were authorized by Tiffany (e.g., in an advertisement for something else). If, however, you were parodying Tiffany in your photo, then your use of the marks could be trademark fair use. So there are many ways a photo of jewelry accompanied by the Tiffany marks could go.)
To clarify - I meant if you took a photo of a Tiffany blue color swatch and then posted a pic of it next to non-Tiffany jewellery a takedown request could succeed.
The issue is the use of the mark by another for the same goods or services. So, another company can use the letter alpha for a chain of pizza restaurants and there's no problem. If a camera company starts using the letter alpha on cameras, however, then it is likely to cause confusion to consumers.
As a consumer, I have two dichotomous views in this.
1) its silly. No, cadbury doesn't own that shade of colour
2) i really want to know I have a product made by the real entity, not brand substitution under-the-hood or fraudulent supply.
I don't actually think 2) demands 1) be made somehow true. I don't think IPR law really works overall, its a very illiberal broad-brush comment but the generality here is that "owning" ideas and expressions is really counter-productive in the wide, and if colour is expressive, then owning it is a very odd idea.
> Though its trademark covers only a specific variation of the color (Pantone Rhodamine Red U), the company has expanded its definition of magenta to encompass a variety of surrounding hues. Since Deutsche Telekom has its hands in so many projects, it has also been able to defend its trademark in industries outside of telecommunications, ranging from fashion to healthcare.
So, the answer is yes, it can. I understaff that they can trademark a logo.
But if the same people that law assumes can read and understand contracts small print can't differentiate two products with different logos but the same colour there is a problem with the legal system. Is people smart or stupid? Or it just depends on what the next big corporation wants?
Fluke uses a specific Pantone 123, and I can't see a significant difference between this yellow and construction machinery maker Caterpillar's yellow. Except that this post's article indicates that Cat lost their request at trademarking a shade of yellow.
I suppose that companies can hassle one another over emoji design... but I think that would be copyright rather than trademark. Ugh.
Surprised the article doesn't mention the artist Anish Kapoor owning worldwide exclusive rights to Vantablack [0], much to the chagrin of the art community. While I admire Kapoor's sense of 'hustle' within the art community, society may be deprived of some interesting art because of the license.
It's ludicrous but it's a reality we have to live with. These corporations have mountains of resources they'll use to defend what they see as their property. Until we can trump those mountains of resources with something else, the corporations will always win.
Is there a distinction between "owning" a digital color, a color of light or a color of object? The background of this question is that an infringement lawsuit will have to test for some kind of "equality" between colors -- possibility of confusing the two has been mentioned in another comment.
However, a digital color gets converted to a color of light in a way that is highly dependent on the monitor it is displayed on, and color-of-light vs. color-of-object aren't really comparable at all: An object is only visible under an external light source, which always has an intrinsic color and therefore always affects the color-of-object seen by an observer.
One color? No. That is equivalent to a single word.
A combination of multiple colors on the other hand? For example, Google's logo colors all being used in the same design. That's where I think it resembles a creative work and could be copyrighted.
The 'Prince' trademark of purple seems pretty flimsy. I have been to concerts before with purple curtains and never associated it with Prince. I just don't see prince as being that big of a brand. I could be wrong but I always saw him as a cult icon vs someone like Michael Jackson.
If money can be made, people who can make the money will lobby/bribe/pressure whatever regulatory body exists to keep other people from impeding their ability to make the money.
Yves Blue can have a patented process and trademark, but it doesn’t prevent someone else from making the color a different way and naming it something else. See also Vantablack.
Solid read - the part I found most surprising is the color can’t have a function, and the pink of Pepto-Bismol has an effect. Wonder how they resolved that from placebo.
I think that this comes from the opposite notion, not that the color has a function but where some purely functional property involves a specific color.
A knife manufacturer cannot trademark the color of stainless steel and prohibit other manufacturers to make steel knifes that look like they're made from steel, a chocolate manufacturer cannot use trademarks to restrict others from making chocolate that is chocolate-brown, and in a similar manner, bismuth subsalicylate simply is pink so Pepto-Bismol can't require other drug manufacturers to artificially recolor their bismuth subsalicylate tablets or use trademarks to prohibit them from selling bismuth subsalicylate as such.
Solution: ban color from all advertising and product labeling. If you can't convince people to buy your product with black letters on white, then your product must be shit nobody really wants or needs anyway.
> An important distinction, adds Samuels, is that a company with a color trademark only “owns” the color in connection to particular goods or services.
A corporation owns a trademark in the same way that you “own” a lane of traffic while you’re driving. You really don’t. You get to use it exclusively, under certain conditions, for the purposes of reducing confusion in an otherwise confusing situation.