If T-Mobile can trademark Magenta in the mobile space, I would like to trademark vowels. In fact, my new startup, AEIOU(Y), works in the audio-engineering space, so would all actors, TV producers, musicians, and everyone else who records sound, please refrain from using vowels. We don't want our customers to confuse us with your recordings.
Being serious, I understand the need to protect your brand from people who would capitalize on the trust and recognition the brand has built. From what I understand, with trademark law definitions are often based on a 'reasonable person's' potential deception (eg. would a reasonable person mistake your generic kleenex for brand name Kleenex?). All other things held constant, it would appear that the mental capacity of a reasonable person has declined.
The definition of what a reasonable person is, seems somewhat variable. The law holds that a reasonable person is too stupid to see the difference between a T-Mobile logo done up in magenta and an Engadget one but at the same time is smart enough, apparently, to reason that Tesco's "Lincolnshire sausages" are merely made in "typical Lincolnshire fashion" (whatever that means) using pork sourced from the Netherlands, Germany and Poland.
> The law holds that a reasonable person is too stupid to see the difference between a T-Mobile logo done up in magenta and an Engadget one
I think you must take into account that logo colours are often used in other aspects of corporate appearance. The colour may be used as a band across an envelope, a letter, or an ad. Done well, you really only need to see that coloured band to know who's sending it.
That's exactly why this shouldn't be allowed. There is a very small number colours that the eye can readily tell apart, if we allow big corporations to claim these the rest of us will be communicating in black and white.
If it is a complete colorscheme then I have less of a problem with it.
It's funny how this seems to be a phone company thing, in NL KPN (the old telco monopolist) has a claim on light green.
> That's exactly why this shouldn't be allowed. There is a very small number colours that the eye can readily tell apart, if we allow big corporations to claim these the rest of us will be communicating in black and white.
Exactly.
If memory serves, you can't hold copyright on the design of a font in the US for similar reasons. A file containing the instructions describing the shape and properties of a font is subject to copyright, but you can't stop someone else from writing a different file with their own instructions, which happens to reproduce equivalent shapes afterwards. Otherwise, the first big companies to grab rights to a basic serif, basic sans, etc. would soon be charging a licence fee to anyone wanting to communicate in writing.
If similar common sense doesn't apply with colours, then as I will shortly be creating Primary Designs Ltd., a business specialising in web design using the colours red, green and blue, I look forward to a profitable lawsuit against T-Mobile, whose web site does appear to activate all three of my company's colours when viewed on a typical computer display.
Seriously, if you build your entire brand around a colour, then I'm afraid that's your own foolishness. Using a colour in an attempt to pass one business off as another is wrong and shouldn't be allowed any more than any other falsification/trademark infringement, but mere use of a colour (particularly an obvious, popular one such as magenta or orange) should not in itself constitute an attempt at passing off. That's just crazy law, probably bought and paid for by expensive lobbyists.
I don't entirely disagree. But it's an oversimplification to state that the law thinks users are too stupid to see the difference in logos if the colour is the same, as GGP did.
There is actually some good proof supporting the GGGP's point. Shady marketeers will use a completely different logo in the exact same shade of colour to fool people in to thinking they're dealing with the phone company when they send out bills for inclusion in bogus directories.
It works, it's a simple as that.
But that should mean to me that if you don't want any confusion that you should pick a black-and-white scheme and force the customer to read instead of using legal tricks to monopolize part of the spectrum.
This article seems to defeat its own point. The visual with companies' logos on the visible spectrum (http://www.flickr.com/photos/philgyford/56867986/sizes/o/) shows that multiple companies can claim the same colors with no problems.
I don't confuse IBM and Intel, Barclay's and Prudential, or Ford and GM simply because they occupy similar locations in the color space.
This is an interesting article but I don't think we're going to deplete the color space the way we're going to deplete the IPv4 address space. People and companies have been using distinctive colors for a very long time, and we've managed to avoid this problem quite well.
"Where a trademark is used generically, a trademark owner may need to take special proactive measures to retain exclusive rights to the trademark. Xerox corporation was able to generally prevent the genericide of its core trademark through an extensive public relations campaign advising consumers to "photocopy" instead of "xerox" documents."
Actually, This article is impossible. A LAB* colorspace would suggest that color is not uniform at all, and we have large perceptual issues with it. Metamerism and all. There is both infinite Chromaticity and Infinite Luminance from a variety of directions to a point. You get an infinite amount of colors...
So what???? Just because We've decided to use the Pantone system to simply things doesn't mean a Pantone Swatch looks the same in all lights (Luminance). Within each swatch, there are infinite subcolors.
So yeah, it's impossible to copyright a magenta- although you can probably specify which Pantone magenta for the sake of certain pigment specifications you mean, you can't trademark magenta. There are infinite magentas...
An sRGB or Adobe RGB colorspace is just a specific cut of LAB*, since there is a specified singular white-point rather than a fluctuating relative luminance. You'll still get infinite color problems with both, as well as Metamerism (different colors via spectrum that look the same to the human eye)
So Trademark all you want. I'll stick your magenta on a yellow background. It's now a different magenta because of perceptual issues.
Interestingly during a recent trip to SF I was reminded of Three Australia everytime I saw T-Mobile's advertising. The Coca-Cola red/Cadbury purple/Starbucks green/Virgin red are probably more well-known associations though. Incidentally, the visualisations in this article are pretty cool.
I was particularly struck by the passing reference to the (unknown to me) International Klein Blue, a color made by and then patented by Yves Klein, a pure blue pigment suspended in clear resin, a color that cannot be experienced on a screen or page, but only by seeing the real thing. An experience that you have to HAVE in person, that cannot be approximated online.
A bit of google and wiki later, I read the surreal ending to his life: "[Klein] suffered a first heart attack whilst watching the film Mondo Cane at the Cannes Film Festival[...] Two more heart attacks followed, the second of
which killed him on 6 June 1962. His son, Yves, was born a few months later in Nice...[His son] grew up to study architecture, design, cybernetics theory of systems, and Fine Arts sculpture. He went on to create robotized sculptures."
One thing leads to another and before I know it I have read a series of things that together induced the sensation of having experienced a moving art installation.
The trick is that you don't hire a lawyer. You defend yourself and they are the ones getting all of the invoices from expensive lawyers. There are also things you can to do cause them to have higher legal fees.
Books from Nolo are very valuable when you are defending yourself.
I agree. I always wondered why lawsuits are inherently expensive. If they are bringing the case, they pay the court costs. You don't have to pay attorneys. Life is about learning and experience and what better way than to be taken on a ride through a new system?
Take it as an opportunity to build a legal defense information system, then sell it and make a bundle off the experience you gain.
It depends on the stakes. If this is merely a case of C&D, and if you lose you just stop doing whatever it was you were doing, the risk is nil.
If there is a claim for damages or restitution or whatever, and you may be out of pocket if you lose, you need to weigh the cost of legal help versus the risk of losing.
Anyone can claim anything they want. I can say the topcolor of HN is "jrockway green" (because mine is green). It doesn't matter though, because nobody else has to call it that, and I can't stop anyone else from using it. (I can send you a C&D, of course, but you can just ignore it because you can't own a color.)
Read the article again. Companies can in fact trademark a specific color and they do - T-Mobile magenta is specifically mentioned.
If T-Mobile magenta shows up in a photograph or a painting, that is, of course, not a problem, but if it shows up in another corporate logo (the article specifically mentions Engadget Mobile), T-Mobile gets to sue and wins.
Engadget Mobile's logo is still the same color, so I don't think T-Mobile sued and won. They simply mailed a nastygram, which anyone can do for any (or no) reason.
Being serious, I understand the need to protect your brand from people who would capitalize on the trust and recognition the brand has built. From what I understand, with trademark law definitions are often based on a 'reasonable person's' potential deception (eg. would a reasonable person mistake your generic kleenex for brand name Kleenex?). All other things held constant, it would appear that the mental capacity of a reasonable person has declined.