🎯 🍺 😭 Can a company “own” color? 🧓🏼 👩🏻‍🍳 💲

Several companies are pushing the boundaries of intellectual property law by claiming certain colors. But is it possible to “own” the color?

Once in the summer of 2019, Daniel Schreiber opened his mailbox and found there a threatening letter from one of the largest telecommunications companies in the world.

In a letter to Deutsche Telekom AG (T-Mobile's parent company), Schreiber's small insurance startup, Lemonade, was accused of violating trademark rights. Schreiber did not understand anything: he did not use the name of the company T-Mobile. He did not take a company logo or motto. He did not even deal with cell phones.

However, reading the letter further, he finally understood: his “crime” was that he used the magenta color.

In recent years, companies such as T-Mobile have been able to achieve what previously seemed legally impossible: they have successfully registered individual colors as trademarks.

When color becomes synonymous with a brand — for example, bluebird jewelry boxes of the color of blackbird eggs, brown trucks of a courier company, orange scissors — a company can declare a certain form of “ownership” of color.

However, can a corporation stake out a color? How will this exclusivity affect competitors?

Colorful story

Under the umbrella of the law on intellectual property are its three most common applications - trademark, copyright and patent.

When a corporation applies for these items, it uses the trademark to protect the integral parts of its brand. From the point of view of the law, it can be “any word, name, symbol or emblem that defines and distinguishes” the company's products or services among the services of competitors.

Having obtained the right to a trademark, the company has the exclusive right to use this intellectual property in the relevant fields of activity.

	Trademark	Copyright	Patent
Who needs	Brands	For authors	Inventors
purpose	Distinguish a product or service from competitors	Protect the original creative and / or intellectual work	Get the exclusive right to use the invention
Examples	Words, logos, mottos, colors	Music, paintings, photographs	Mechanical devices, technologies
Time frame	No limit (need to be renewed every 10 years)	70-170 years	15-20 years old

For many years, color alone could not be a trademark.

Although companies were able to register color combinations (such as Campbell's canned soup), the U.S. Patent and Trademark Office prevented attempts to register a single color as a trademark. For example, John Deere, the manufacturer of equipment for farmers, was not given exclusive rights to green.

Lawyers cited several arguments against registering trademarks in separate colors:

. «» 1867 . , .
. .

But that all changed with the appearance of the following:

Owens-Corning Fiberglass Thermal Insulation in Registered Pink

This is, dear readers, a fragment of fiberglass thermal insulation (what is laid in the walls) from a company called Owens-Corning.

In the late 1950s, Owens-Corning fought fierce competition from other fiberglass insulation companies. At that time, all products were of the same color as "natural tan"; To stand out, Owens-Corning decided to paint its product pink.

Over the next 30 years, the company used its unique pink isolation as a marketing tool: it used the think pink slogan, used the Pink Panther as a mascot, and spenttens of millions of dollars to advertise this color.

In 1985, after a 5-year legal struggle, Owens-Corning became the first American company to successfully register color as a trademark.

Ten years later, Qualitex reached the Supreme Court itself, defending its right to register its famous green-gold dry cleaning wipes as a trademark. The court ruled that color can determine a brand - and as a result opened the way for companies wishing to apply for registration of their own color trademarks.

How can I register a color?

In the decades since the Supreme Court, many companies have successfully registered individual colors as trademarks.

Tiffany & Co. registered its famous blue in 1998 - in the same year, UPS registered its “Pulman brown”. 3M registered its characteristic canary yellow color of notes for recordings, Deutsche Telekom AG registered the famous magenta color T-Mobile, and Fiskars orange for scissor pens.

There are even a few unexpected examples: The Wiffle Ball, Inc. owns the yellow brand for baseball bats, and singer Prince’s estate has applied for purple registration.

These trademarks are used not only in business. University of Texas at Austin ( Pantone 159) and the University of North Carolina at Chapel Hill ( Pantone 542 ) have registered their school colors.

Some of these companies, for example, Cadbury, have already lost their trademarks for colors in court.

Many brands register colors used in their logos (red and yellow at McDonald's, blue at Facebook). However, these companies did something more rare: they registered literally color swatches.

“Usually a company does this when its business model is based to some degree on a certain color,” says Jeffrey Samuels, professor emeritus at the University of Akron Law School. “Then the company registers color as a trademark to prevent other companies from using it.”

It’s important to note, says Samuels, that a company’s trademark applies to this color only in conjunction with certain products or services.

Take, for example, the brand name for Prince's estate, Paisley Park Enterprises. It has only the magenta color itself - no logo, no words, no other signs of the brand. If they get permission, they will exclusively use purple in concerts. They claim that magenta alone is enough to identify their brand.

In order to successfully register such a trademark, the company must prove that the individual color:

It conveys a " secondary meaning " (distinguishes the product from competitors and defines the company as an exceptional source of product).
.
.

The latter, says Intellectual Property Specialist Robert Zelnik, means that “color must be arbitrary in order to be registered: it cannot be vital to the production of a product or somehow applied.”

And sometimes proving it can be extremely difficult.

General Mills twice failed to register the yellow brand name for the Cheerios box due to the fact that this color is not associated with the company because it is used by too many other breakfast cereal companies.

Pepto-Bismol's attempts to register pink were rejected when the court ruled that the “therapeutic” color effect was functional for consumers.

Color wars

As Lemonade startup director found out, companies that have registered color brands often go to great lengths to defend them in court - and competitors often argue about their right to monopolize certain shades.

T-Mobile Director John Leger is totally committed to his shade of purple.
Below are the four colors that are controversial: the first T-Mobile uses branding, the second has registered, the third and fourth prohibits the use of another company, Lemonade

Over the years, these controversial brands have led to dozens of claims for “ownership” of colors:

2002 Mattel MCA Records , Aqua Barbie Girl. «».
2010 Hershey Mars . .
2011 - , .
2015 DeWalt $54 , , .

However, one of the companies especially zealously protects its registered color.

Deutsche Telekom AG, the parent company for T-Mobile, has been trying for at least 12 years to prevent competitors - both large and small - from using purple.

Although the company's trademark covers a very specific version of this color ( Pantone Rhodamine Red U ), the company has expanded its definition to magenta to capture all the neighboring shades. Since Deutsche Telekom has been involved in many projects, it has been able to protect its brand in various sectors other than telecommunications, from fashion to healthcare.

In 2008, she attacked Telia, a European competitor in wireless communications. A few months later shedemanded that the Engadget blog remove the magenta color from the logo. In 2014, a judge ruled that AT&T's Aio Wireless division cannot use magenta because it can confuse T-Mobile customers.

Letter from T-Mobile's parent company to Engadget

The company's latest victim, Lemonade, obeyed T-Mobile's demand by changing the color of its advertising material in Germany, where Deutsche Telekom AG is based. The company also filed a petition in Europe to “cancel the Deutsche Telekom AG trademark in purple.”

Making such changes can cost a pretty penny - especially for large companies that spend tens of millions of dollars on advertising and brand promotion strategies.

However, the costs of lawsuits by companies that are constantly looking for violators of color brands can also amount to a large amount. Hence the question:

Is registering color a trademark worth the effort?

When a company registers a trademark in black and white — for example, a simple logo — the trademark is by default protected in all color combinations. No one can take, say, the red and yellow McDonald's logo, repaint it in purplish green and appropriate it for itself.

So why should a brand waste energy registering color if it already has a lot of things protected?

“Brands do this only when color is critical to the brand, or to sales, or how the product is advertised,” said Zelnik, intellectual property specialist.

The popularity of colors in logos and brands of different companies. Most of all they love blue.

Most marketers are aware of the effect of color on consumer behavior. Studies and surveys have shown that:

62% -90% of the initial assessment of the product by the consumer is based on its color.
52% of consumers say packaging color is a sign of quality.
Color increases brand recognition by up to 80%.

So if you are thinking of making your brand a separate color, try your luck. Just do not choose a magenta.

Can a company “own” color?

Several companies are pushing the boundaries of intellectual property law by claiming certain colors. But is it possible to “own” the color?

Colorful story

How can I register a color?

Color wars

Is registering color a trademark worth the effort?

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