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Can a Corporation “Own” a Color?
- hourago 4y ago> 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?
- Overtonwindow 4y agoRelated, Dupont had a problem with the corporate spy stole the formula for one of their paint colors. https://www.bloomberg.com/features/2016-stealing-dupont-white/ https://www.bloomberg.com/features/2016-stealing-dupont-whit...
- robg 4y agoSolid 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.
- PeterisP 4y agoI 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.
- pavon 4y agoI 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.
- mc32 4y agoThis 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.
- m463 4y agoDewalt is interesting, because I always thought they copied industrial/pro colors, like caterpillar
- a9h74j 4y agoFWIW, 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.)
- approaching236 4y agoCorporations already own most of the colors. They're just called spectrum band plans
- pooper 4y agoI am not an expert on anything but I still think there has to be a better way to allocate wireless spectrum to telecoms than an auction. 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?
- eru 4y agoBetter in what way? 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.
- jk_i_am_a_robot 4y agoTrademarks 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.
- kennywinker 4y agoSeems like a functional system, let’s keep going with it and see where we end up! /s
- robhunter 4y agoI believe this was settled in the case of Hamlin vs. McGill, New Mexico, 2004
- wonderwonder 4y agoGood Read. 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.
- nasmorn 4y agoHe is more of a cult symbol really
- ggm 4y agoAs 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.
- mountain_peak 4y agoSurprised 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. [0] https://www.wired.com/story/vantablack-anish-kapoor-stuart-semple/ https://www.wired.com/story/vantablack-anish-kapoor-stuart-s...
- chimpansteve 4y agoI 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.
- bdowling 4y agoIt'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.
- londons_explore 4y agoWacky trademark idea: 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.
- kennywinker 4y agoWhat? 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.
- drdaeman 4y agoAn 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).
- keithnz 4y agodoesn'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 :)
- bruce511 4y agoBut 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.
- chadlavi 4y agoObviously no. They can claim they do, they can sue other people over it, they might even win. But it's just ludicrous. No one can own a color.
- bovermyer 4y agoIt'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.
- kennywinker 4y agoAt 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.
- bdowling 4y agoThe legal answer is a resolution of "likelihood of confusion" to a consumer of the same or closely-related goods or services.
- kennywinker 4y agoWhich 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.
- eru 4y agoIt's not quite as bad as you make it out to be. 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.
- quickthrower2 4y agoBy the loose definition of Magenta in the article there are probably about 20-30 or so distinct colours, I imagine.
- kennywinker 4y ago
- KennyFromIT 4y agoOne 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.
- BobCat 4y agoMattel has a trademark on "Barbie Pink". You can paint your dream house that color, but you can't sell a dollhouse that color.
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- watersb 4y agoSparkfun Electronics vs Fluke, over a yellow multimeter: https://www.sparkfun.com/news/1430 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.
- kube-system 4y agoThe 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.
- xeyownt 4y agoTo avoid any confusion, these corporations should be sent to operate on planet Mars exclusively.
- tialaramex 4y agoYes! 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)
- cool_dude85 4y agoIs 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?
- iso1631 4y agoIf 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. [0] https://www.flickr.com/photos/86338173@N00/420163710/ https://www.flickr.com/photos/86338173@N00/420163710/
- vivegi 4y agoPersonally, 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.
- quickthrower2 4y agoOk this is dystopian. Color trolls? Who would have thought.
- moring 4y agoIs 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. How would this get dealt with in practice?
- InCityDreams 4y agoThe most $$ wins.
- dr_dshiv 4y agoYves 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.
- robonerd 4y agoSolution: 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.
- mindaslab 4y agoNo. They can't.
- thatwasunusual 4y agoI used to work for a company named Magenta News, which changed name to Meltwater[0] in 2007-ish exactly because of this. [0] https://www.meltwater.com/en https://www.meltwater.com/en
- ChaosMarine 4y agoThey can license radio frequencies, which are colors, just that we can not see in the radio spectrum.
- michaelcampbell 4y agoIf 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.
- plaguepilled 4y agoI hate the fact that this is even entertained.
- akagusu 4y agoHonestly, they can. 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.
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- xg15 4y agoI 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. Would that be correct?
- gweinberg 4y agoAnyone 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.
- xmprt 4y ago> 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.
- gweinberg 4y agoIt 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.
- xmprt 4y agoIt'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.