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Thursday, February 7, 2013

Be careful when you color my world, Petula

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Blog exclusive:

My favorite band recently came to town. All the members of this band wear a distinctive canary yellow suit -- a suit that's always seemed like a trademark. During the band's recent visit, I started thinking about the possibility of color as a trademark. And the next thing I knew, I had an idea for a blog story. But before writing it, I first had to get the green light from my editor.

And green, it turns out, when combined with yellow, is a color scheme you don't want Deere & Co. to find out you're using for outdoor power equipment similar to John Deere's; otherwise, you may find yourself parting with some green(backs) courtesy of Deere's lawyers. How can this be? Who says Deere can "own" green and yellow? The Supremes, that's who.  And they said it unanimously.

Eight years ago, in Qualitex Co. v. Jacobson Products Co., the U.S. Supreme Court ruled that individual colors can be trademarked if they indicate, in consumers' minds, the source of the goods or services they're connected with, which is known as "secondary meaning." Soon after that ruling, John Deere no doubt quickly plowed a path to the U.S. Patent and Trademark Office to register the green-and-yellow color scheme, arguing that it, along with the leaping-deer symbol and John Deere name, had become synonymous with outdoor power equipment. The PTO agreed, and now Deere owns the rights to that scheme in its industry.

What about yellow without green? Can just one color be distinctive enough to indicate the source of a product? Ever hear of "Caterpillar yellow"? That's the color Caterpillar Inc. uses on its construction and mining equipment. And if you try using it on similar equipment, the Caterpillar lawyers are going to be crawling all over you. That's because the company has acquired the rights to that shade of yellow in that industry. Speaking of yellow, you'll want to put up a Post-it note to remind yourself to steer clear of the note's shade of yellow, in which 3M claims trademark rights.

Red and blue, along with yellow, are the primary colors, so you might think they would be safe to use for a product, right? If you did, you'd be red-faced and feeling blue once the lawyers got a hold of you. Target claims red as a principal feature of its bull's-eye logo and lettering, and the use of "Tiffany blue," which goes way back to 1845, is not going to be your color either. And, although not a primary color, purple is really not going to be your color, thanks to the claims on it of Cadbury (candy), 3M (packaging), and AstraZeneca (the drug Nexium, also known as "The Purple Pill").

That covers the primary colors a bit, but your education in colors as trademarks doesn't end there. The universities of Texas and North Carolina have their own colors too. For UT, it's burnt orange and white, with the orange otherwise known as Pantone Color #159. And for UNC, it's "Carolina Blue and White," with the blue otherwise known as Pantone Color #278. 

How about brown though? Who would want brown? After all, didn't Winston Churchill say, "I cannot pretend to feel impartial about colors. I rejoice with the brilliant ones and am genuinely sorry for the poor browns"? Enter the United Parcel Service, which doesn't think brown is poor at all; in fact, when it adopted brown  -- specifically "Pullman brown" -- as its color in 1916, brown  was  considered the epitome of luxury and class. Now UPS has gone so far as to identify itself as Brown, as in its advertising tagline: "What can brown do for you?"

I'll tell you what Brown can do: it can bring me a colorful ending for this story. But no colors claimed as trademarks, please.

 

*Petula Clark was a popular English singer whose 1966 recording of "Color My World" was a global hit.

 

  

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