Can You Trademark a Color?(freakonomics.com)
freakonomics.com
Can You Trademark a Color?
http://www.freakonomics.com/2011/08/12/can-you-trademark-a-color/
14 comments
I'd be careful. That wiki mentions nothing about me being trademarked (although it did before) and has suspect sources cited at the bottom. The IP status of Intl Klein Blue is not very clear from my personal research into the matter.
Created 117 days ago!
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Yes. See the case of In re Owens-Corning Fiberglas Corp., 774 F.2d 1116 (Fed. Cir. 1985). Here's a copy of the decision: http://ftp.resource.org/courts.gov/c/F2/774/774.F2d.1116.84-...
The difference being, coloring fiberglass insulation serves to identify its brand, and serves no other purpose.
Red soled shoes are arguably better looking, which is a functional purpose of shoes. So you shouldn't be able to trademark them. Trademarks should only prevent people passing off goods as yours, not copying your function.
Similarly, Apple shouldn't be able to trademark Aluminium notebooks, or single button phones, as they have a functional purpose.
Of course, their is a question as to whether aesthetics is a function, and whether restrictions on aesthetics will limit the function of competitors' offerings. In fiberglass insulation, I doubt it. High-heels, maybe.
Red soled shoes are arguably better looking, which is a functional purpose of shoes. So you shouldn't be able to trademark them. Trademarks should only prevent people passing off goods as yours, not copying your function.
Similarly, Apple shouldn't be able to trademark Aluminium notebooks, or single button phones, as they have a functional purpose.
Of course, their is a question as to whether aesthetics is a function, and whether restrictions on aesthetics will limit the function of competitors' offerings. In fiberglass insulation, I doubt it. High-heels, maybe.
I'd have argued that the red soles were indeed intended to be for identification only. Anything else is a function of people's perceptions (e.g. beauty is in the eye of the beholder.)
Lest we argue that red soles are aesthetically functional as well, regardless of the designer's intent, let's consider the possible repercussions of pink insulation when applied inside transparent walls. Or perhaps the calming effect the color has on installers. Now, the pink is functional. Does that make it less able to be protected?
I really think it goes back to the intent of the creator/designer/architect of the product. The designer of the shoes seems to have argued the aesthetic qualities of the color on the sole and therefore nullified his ability to claim the use of color was not "functional." If he'd held out with the argument that his intent was identity, he may have won.
Lest we argue that red soles are aesthetically functional as well, regardless of the designer's intent, let's consider the possible repercussions of pink insulation when applied inside transparent walls. Or perhaps the calming effect the color has on installers. Now, the pink is functional. Does that make it less able to be protected?
I really think it goes back to the intent of the creator/designer/architect of the product. The designer of the shoes seems to have argued the aesthetic qualities of the color on the sole and therefore nullified his ability to claim the use of color was not "functional." If he'd held out with the argument that his intent was identity, he may have won.
I wish people would read the article before commenting. This precise example is discussed in the article.
I read the article. And then I commented, providing information NOT PROVIDED IN THE ARTICLE. Namely, a correct legal citation to one of the most famous color trademark cases, and a link to the court's decision.
edit: could the down voters please explain yourselves? Am I wrong in assuming that some people would like to read the actual case mentioned in the article, instead of just a couple sentences about it?
edit: could the down voters please explain yourselves? Am I wrong in assuming that some people would like to read the actual case mentioned in the article, instead of just a couple sentences about it?
When contributing value to the discussion, context is important. The article clearly distinguishes this situation from the case you cited. If you want to discuss that decision in more detail, try:
"If anyone is interested in the case mentioned in the article, here is a link to the full-text decision. [link]
Because the colour used in that trade mark was purely for the purpose of identifying the product and had no practical or aesthetic purpose, the court held that the colour could not be used by competitors."
"If anyone is interested in the case mentioned in the article, here is a link to the full-text decision. [link]
Because the colour used in that trade mark was purely for the purpose of identifying the product and had no practical or aesthetic purpose, the court held that the colour could not be used by competitors."
Perhaps even more famously (for law school nerds): http://en.wikipedia.org/wiki/Qualitex_Co._v._Jacobson_Produc....
The article mentioned that as an example specifically, why call it out here?
The article also details why that case is different from the one the article is about.
The article also details why that case is different from the one the article is about.
When I worked at UPS, they told us the company had a trademark on "Pullman Brown". Not sure if that's actually true or not (can't find reliable info with a quick search).
It is true according to my IP instructor. UPS has a trademark on the color in the context of delivery services, it being strongly associated with their brand.
According to this article YSL made a pair of completely red heel, top and bottom, which is what landed them in this lawsuit. http://www.inquisitr.com/133848/louboutin-battle-yves-saint-...
This use of red seems very different from contrasting soles - and having a trademark that blocks red high heels seems a bit overreaching to me.
This use of red seems very different from contrasting soles - and having a trademark that blocks red high heels seems a bit overreaching to me.
"lastminute.com", "lastminute" and the colour magenta are all trade marks owned by Last Minute Network Limited and/or its group companies.
The T-MOBILE acoustic logo, and the color magenta are registered and/or unregistered trademarks of Deutsche Telekom AG in the US and/or other countries
The T-MOBILE acoustic logo, and the color magenta are registered and/or unregistered trademarks of Deutsche Telekom AG in the US and/or other countries
On the Australian ANZ Bank page : http://www.anz.com.au
The footer contains the text "ANZ's colour blue is a trade mark of ANZ."
The actual web site contains multiple blues, so I am wondering which exact one they have trademarked?
The footer contains the text "ANZ's colour blue is a trade mark of ANZ."
The actual web site contains multiple blues, so I am wondering which exact one they have trademarked?
I would say no. How is a color original when stars have been making it for eons?
Originality only applies to patents.
I remember Cadbury (the chocolate company) tried to trademark the color purple. I think they failed at it because “purple” apparently wasn't a clear and concise description of the trademark.
"Color Pink® and Pink Nitrile® are registered Trademarks of Colur World, LLC."
You can find that disclaimer on any site containing mentions of pink nitrile gloves for use in hospitals.
You can find that disclaimer on any site containing mentions of pink nitrile gloves for use in hospitals.
You shouldn't be able to trademark colours, but a specific colour on a specific area of a specific item (red soled shoes), that others copy purely so customers are confused about the brand image, does sound more like what is needed.
Read the article. This is almost exactly how the US trademark system works.
Is it a (hyper)intelligent shade of the color blue?
Pantone seems to think you can: http://en.wikipedia.org/wiki/Pantone#Intellectual_property
It looks like they are asserting copyright, not trademarks.
Yes you should be able to trademark colors. Also, people should be allowed to trademark specific tones, like middle 'C' on the piano. I bought that one, you can't use it.
You think you're being clever and sarcastic: http://en.wikipedia.org/wiki/NBC_chimes
I don't like your attitude, Sir - I think I'm going to patent it.
http://www.engadget.com/2008/03/31/deutsche-telekom-t-mobile... http://www.engadget.com/2008/04/01/painting-the-town-magenta...