Tuesday, September 3, 2013, by Will Blackton
Before picking up a crayon, consider that you may be “trespassing” in an area of the visible spectrum. You may be in trouble if your box contains “Coca-Cola Red,” “Starbucks Green,” or “Ford Blue.”
“T-Mobile Magenta” was a subject of litigation last week. Deutsche Telekom AG, the parent company of cell phone service provider T-Mobile, filed suit in federal court on August 23 against AIO Wireless, a subsidiary of AT&T. The suit alleges trademark infringement and unfair business practices by encroaching on T-Mobile’s rights in the telecommunication industry to the color magenta. Both companies provide prepaid cellular phone service.
“AT&T’s subsidiary’s use of magenta to attract T-Mobile customers is likely to dilute T-Mobile’s famous magenta color trademark, and to create initial interest [and] confusion as to the source or affiliation of AT&T’s subsidiary’s business.” Deutsche Telekom stated in its complaint.
The authority on color values is provided by Pantone, which defines 1,114 spot colors. T-Mobile has claimed, in the telecom industry at least – it owns Pantone Color # 159. The RGB color model, although inexact because it’s device-dependent, provides the easiest way to compare different colors, because it represents the additive amount of red, green, and blue. As an example, Carolina Blue is 86-160-211, where Duke Blue is 0-0-156. T-Mobile’s magenta can also be noted by its RGB value, 245-1-129. AIO’s logo has an RGB value of 151-42-81. A Forbes article’s coverage of the lawsuit presents the logos side by side.
Deutsche Telekom’s aggressive protection of “T-Mobile’s powerful magenta trademark” was a much-discussed topic of tech blogs in 2008 when the company demanded that Endgadget Mobile, a blog about smart phones, discontinue its use of the color. U.S. intellectual property law allows the trademarking of colors in specific commercial settings. In 1995, the Supreme Court unanimously ruled that if colors have a secondary meaning in the marketplace, they can be registered as trademarks. Recovery for color-trademark infringement may be maintained if an overall color scheme is sufficiently similar to convince a jury that there was a likelihood of confusion between the two products. The letter sent by T-Mobile to Endgadget actually pointed out the difference in character of the goods and services offered by the two companies, which in combination with the derisive reaction of the online community may have stayed that potential court action.
But AIO’s service is almost identical to T-Mobile’s, and courts have signaled that there is a great deal of money to be made in patent and trademark litigation. In the recent Samsung Galaxy and Apple iPhone suit, $725 million of the $1 billion Samsung payout centered around a design patent on a single color image of the Apple iPhone’s home screen.
There are only seven easily recognizable colors in a rainbow. Will federal courts effectively limit color-branding to as many companies in each industry? Major payouts or even the substantial litigation costs associated with entertaining this type of lawsuit will make marketing departments think twice about which colors they pull out of the box.
You may also like:
Can an actor in the fashion industry ever trademark a single-color feature?