Paint the Town Magenta!

Paint the Town Magenta!

Can You Trademark a Color?

So, T-Mobile has claimed the rights to the color Magenta. The company argues that the use of the color by an online insurance company (Lemonade) is infringing on its rights.

Can a company trademark a color and restrict others from using the color in business??

Yes, under certain circumstances, this is possible. In this case, T-Mobile may not be able to restrict this particular company from use of the color.

 

Single colors and color combinations can be trademarked only if they serve as a source identifier for the brand AND do not perform a utilitarian function.

Utilitarian function occurs when a mark that is either essential to the good or service or affects the cost or quality in some way. If a brand’s color indicates a characteristic of the good or service, then it will likely be denied as trademark by the USPTO.

 

Some examples of a utilitarian function include:

  • Amber glass bottles because they provide UV protection for the contents
  • The use of the color green to show relation to “green” (organic) products
  • Orange safety vest because the color increases visibility to others.

In order for a color to be recognized as a trademark, it must have proof of achieving secondary meaning. This means that, over time, the public has come to associate the color or combination of colors, in connection with a good or service, with a particular source.

 

However, if the colors are already widely used in connection with a good or service amongst various companies, it will be unlikely for any one company to trademark the color(s).

 

Secondary meaning can be proven by mass advertisement using the color in addition to a example of a magnitude of consumers associating the color (in connection with a good or service) with the company in question.

 

The downside to trademarking a color is that you limit your protection to only that color. Trademarks that do not claim color as a part of the brand are afforded the widest range of protection when preventing others from using their mark. On the other hand, if the color of the brand is what makes the brand distinctive, then trademarking the color would be an excellent decision.

 

For instance, the Tiffany blue packaging lends a very distinguishable factor to the company Tiffany & Co. Without the Tiffany blue color packaging, one would probably question whether the product actually came from Tiffany & Co. In this case, it would make sense for Tiffany & Co. to trademark the color.

 

Similar to Tiffany & Co., the magenta color has been incorporated as part of T-Mobile’s central identity. The company has advertised its brand with the magenta color for years so much that seeing the letter “T” in combination with magenta color will likely trigger thoughts of T-Mobile to most consumers.

 

But just like any other trademark, you are only protected in the classes that you use the mark. In this case, T-Mobile is using the color in telecommunications while the insurance company (Lemonade) offers homeowners and rental insurance. I believe it is unlikely that the company will succeed in restricting an insurance company from using the color, unless the insurance company plans to incorporate telecommunications to their services.

 

Are you trying to figure out if trademarking a color is right for your brand? 

Contact us to discuss! We are here to help you through this process.

Author: Eloise M. Kaiser, J.D.

Eloise Kaiser joined New Millennia Legal Resources mid-year 2019 as the Senior Client Liaison. She is a New Orleans native and graduate of Loyola University New Orleans College of Law. As a natural creative in her own right, she holds a special interest in business and intellectual property law.

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