Can a Corporation “Own” a Color?
thehustle.co
thehustle.co
> 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.
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.
That’s exactly what a court would consider when determining the validity of such a case.
https://hackaday.com/2014/03/19/multimeters-without-a-countr...
Though they made good on this incident:
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.
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.
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.
I'm shocked to learn of such a thing.
It's completely foreign to me too. I'm sure they're tasty, but I'm having trouble imagining what they would taste like.
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 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.
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.
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.
Wait, you can’t buy a non-LV bag with LV logo somewhere and use it in EU? What about fake wrist watch?
If you have multiple such items in your luggage they will claim it's not for solely private use.
https://www.belastingdienst.nl/wps/wcm/connect/bldcontenten/...
Thanks
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.
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.
Eg Coca Cola might own red for drinks, but you can still use eg red-and-blue on your logo for your own brand of drink.
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.
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.
Seems like it helps nobody.
Similarly, a troll may even try to extort you into paying them to not bid on your trademark (= possibly lose your business).
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.
Everyone is taxed. The big guys with more valuable trademarks even more.
- Corporations put large bids on their competitors products to drive up their bids as well (colluding has to be explicitly forbidden by law).
- As the amounts bid only result in a 1% payout, a class of high-interest loans for only the short duration of the bids appears.
- One year companies do a mass dump, and let their competitors have their worst inventory.
- A "twelve sigma" event happens and Morgan Stanley has to be bailed out because of all the shit loans needing to be repaid on the spot.
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.
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.
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.
Those arguments don't apply for a tax on capital.
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.
Yes, that's exactly how that tax is supposed to work. Duh.
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).
(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.)
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.
> 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).
Aimed at preventing lame business partners who just squat there, refusing to leave but adding no 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”.
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.
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.)
We don't want nor do we need the telecom money. At the end this money comes from us anyway. Why can't we just skip the auction nonsense?
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.
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.
Would that be correct?
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.
People often bring up trademarking colors as crazy but I actually think it's one of the more sensible parts of IP law.
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)
https://www.uspto.gov/trademarks/basics/why-register-your-tr...
Common law rights
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.
There was an interesting case in Australia about an unregistered trademark and who owned it after an acquisition of the product it was associated with: https://www.claytonutz.com/knowledge/2019/may/a-fight-about-...
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.
[1] https://trademarks.justia.com/865/71/tiffany-86571740.html
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.)
Agree with all your points.
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.
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?
https://www.sparkfun.com/news/1430
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.
[0] https://www.wired.com/story/vantablack-anish-kapoor-stuart-s...
https://www.bloomberg.com/features/2016-stealing-dupont-whit...
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.
How would this get dealt with in practice?
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.
You can paint your dream house that color, but you can't sell a dollhouse that color.
It does not matter all discussions about trademark laws, intellectual property and other stuff. It's just blah blah blah.
In a world ruled by money, who has the money makes the rules.
The rules that defines who can own what are made by those who control the money, so they can choose to own whatever they want.
Everything different from this is just an illusion.
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.
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.