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Seeing orange.
August 12, 2004 1:54 AM   Subscribe

Seeing red orange. Can a company 'own' a colour?
posted by etc (36 comments total)

 
No. Isn't that, like, the first thing you learn in IP? This is bonkers.
posted by Pretty_Generic at 3:40 AM on August 12, 2004


No, a company can't own a colour, but Orange isn't trying to.

In the industry of mobile phone service provision they want to prevent other companies, of which there are a handful, using the colour orange as a strong part of their brand identity. In an industry with few competitors this seems fair to me, although I don't see it as an, er, black and white issue. Orange are the only company in the market that use a colour in a signficant way. Here comes another company wanting to use te same colour in a signifcant way.

That's the issue.
posted by nthdegx at 3:43 AM on August 12, 2004


I'm going to name my company 'Air' and charge a fee of everyone who breathes.
posted by spazzm at 3:46 AM on August 12, 2004


Orange started using it for mobile phones in 1994, easy started using it for planes in 1995. It's an unfortunate coincidence for Orange, not a deliberate malicious action. The idea that easy should be obliged to change their equally well-established brand based on its choice of colour seems absurd to me.
posted by Pretty_Generic at 3:54 AM on August 12, 2004


I think you'd find that Vodaphone or T-Mobile would get eqaully arsey about the over use of their red or magenta colours.

The problem is that the orange is such a predominant part of both their company images. I'm not sure that there is going to be an easy answer to this. Popcorn at the courts anyone? Should be fun...

nthdegx - if you read the article, it says that you can indeed own a colour and that Cadbury "own" that purple when it comes to chocolate companies and Heinz "owns" (ownz?) the turquoise colour it does it's beans tins in. Inside a market, it appears these things are ownable.
posted by twine42 at 4:23 AM on August 12, 2004


I think it would be naive to think that EasyStuff didn't know that this move would be one in the eye for Orange. EasyJet using the colour orange on planes is not a problem, and Orange (the company) have never complained. It's the move into the mobile phone market that is, in my opinion, malicious, and I would bet my boots that if Orange moved into the low cost airline industry and wanted to paint their tails Orange than EasyJet would have something to say too. No strong opinions on the outcome, but having been a customer of both I have received much greater customer satisfaction from Orange, and between the mis-statement in the original post and for any amount of unrealistic over-simplification they most certainly have a point.
posted by nthdegx at 4:23 AM on August 12, 2004


I have read the article, twine, and until you arrived it appeared that I was alone in that respect. It doesn't say anything about Cadbury owning purple, in respect to confectionary companies or otherwise. It says that firms have a right to protect colours and Cadbury are one "example" that "can argue" the point.
posted by nthdegx at 4:31 AM on August 12, 2004


Considering the article includes the line "Can a company really claim ownership of a colour?", it seems like a relevant question. Chill out.
posted by Pretty_Generic at 4:37 AM on August 12, 2004


If you read only the first paragraph it seems like a relevant question. If you read the rest it really doesn't. As for chilling out I don't know where that came from, really, but let's try to keep on topic.

Anyone actually know of any precedents where colour has been a contested issue?
posted by nthdegx at 4:47 AM on August 12, 2004


Tangentially, Stelios obviously knows something that we don't. Why the hell else would he be entering the saturated and fearsomely cut throat UK mobile telephony.

As for this storm in a tea cup, Orange clearly registered the use of Pantone 151 in relation to mobile telephony EasyGroup seem to be deliberately sailing close to the passing off wind in order to court publicity…. Great PR through – free publicity!
posted by dmt at 4:58 AM on August 12, 2004


Good point, dmt. It comes with the added bonus (as can be seen in this discussion thread) that when Orange defend themselves they look bad doing so. Free publicity, yes! Also simultaneous muddying of the name of a potential competitor.
posted by nthdegx at 5:03 AM on August 12, 2004


It is not about owning but rather whether the second comer's use of the color orange will create a likelihood of confusion. If it will, then that is not fair to the first comer and it can prevent the second comer from using it. The second comer's (Easy) intentions are irrelevant. Further, no one is saying that they need to change their color, just not to use it for cell phones in a fashion that will create a likelihood of confusion. Depending upon how central the color orange is to Orange's brand identity and how close the two shades of orange are to each other you can imagine that it may be difficult for Easy to use its color in the cell phone market without creating a likelihood of confusion.
posted by caddis at 5:06 AM on August 12, 2004


On the subject of product design (including colour) the UK Patent Office states that it should "have individual character which means that the overall impression it produces on an informed user of the design must differ from the overall impression produced on such a user by any design which has already been made available to the public."
Stelios himself has a few words to say on the matter of brand thievery himself.
posted by longbaugh at 5:11 AM on August 12, 2004


The issue of color falls into recognizable trademark. There's a coffee chain near Hoboken, NJ called "Havana Bay" that clearly and deliberately rips of the Starbuck's logo. Instead of the goddess thing, they have a lighthouse, but the circular seal and font is exactly the same. Starbucks threatened suit until they changed the color of the seal from green to blue. (They also sued a woman named Sarah Buck because she owned a store in the Midwest called "Buck's Coffee," because, you know, they're douches.)
posted by XQUZYPHYR at 5:12 AM on August 12, 2004


Me fixee lastee link
posted by longbaugh at 5:14 AM on August 12, 2004


more from the guardian, including some quotes from easy founder Stelios...

"I am confident that we have the right to use the colour orange and I am willing to enforce that right in court if I have to"
posted by triv at 5:21 AM on August 12, 2004


I'd have a lot more symapthy for Stelios if he hadn't decided that he owned the word "easy".

Regarding this particular case, I think it's clear that Orange are in the right and EasyGroup are in the wrong. When it comes to mobile phones, the two logos are too similar, and Orange got there first. It would be less clear cut if, for instance, EasyGroup used a white simcard with an orange border and orange text.
posted by salmacis at 7:03 AM on August 12, 2004


Every day the argument for ditching the patent system altogether grows stronger.
posted by rushmc at 7:16 AM on August 12, 2004


Perhaps Dave Winer should talk to easyGroup....
posted by armage at 7:27 AM on August 12, 2004


rushmc this isn't a patent issue it's a trademark issue. For the most part I don't have a problem with trademarks as they protect you from counterfits and product confusion.

nthdegx: Anyone actually know of any precedents where colour has been a contested issue?

Owen Corning has been granted a trademark for pink as far as fiberglass insulation goes. John Deere tried to trademark their colour of green and was denied.

The reason for the two different results is that limiting others from using pink as a fiberglass colour doesn't create a barrier to entry to others. The colour is completely arbitrary. On the other hand forest green was a aesthetically functional colour as far as agricultural equipement is concerned. IE: it implies healthy plants.

A hypothetical example to differentiate: If Bob's Hot Water Manufacturing Company was to paint all their tanks Pantone Green 123 they could probably Trademark that colour in the hot water tank industry. If they were to paint their tanks Red they wouldn't be able to trademark that colour because Red = Hot.
posted by Mitheral at 8:01 AM on August 12, 2004


Color alone may be registered as a trademark. Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159 (1995).

if Descriptiveness + Secondary Meaning = Source-Identifying, then ®.
posted by bafflegab at 8:22 AM on August 12, 2004


I'll sue the lot of 'em.
posted by Orange Goblin at 8:22 AM on August 12, 2004


Thank you, Mitheral and bafflegab.
posted by nthdegx at 8:30 AM on August 12, 2004


If I recall, Dow has a mark on the shade of light blue of Styrofoam (which is an insulation product, not the foam used in foam cups).
posted by abcde at 9:20 AM on August 12, 2004


Tangentially, Stelios obviously knows something that we don't. Why the hell else would he be entering the saturated and fearsomely cut throat UK mobile telephony.

His plan involves customers providing their own phones and (I am guessing) allowing you to sign up for a period of less than one year. Currently all of the networks require you to sign a minimum one year contract and include a "free" phone as part of the price (which of course you just end up paying for by way of increased monthly fees).

I think it could be pretty popular (if it ever eventuates).
posted by urban greeting at 9:26 AM on August 12, 2004


Owens-Corning got a (U.S.) registered trademark on pink insulation.
posted by pmurray63 at 9:29 AM on August 12, 2004


The color orange, you're fired!
posted by greensweater at 11:21 AM on August 12, 2004


I believe Intel owns its blue. Or maybe it's IBM.

And I'll bet Heinz owns its blue, purple, and other gross-colours-for-ketchups. Thank god for that or there'd be even more poisonous-colour condiments.
posted by five fresh fish at 11:34 AM on August 12, 2004


Anyone actually know of any precedents where colour has been a contested issue?

several have already been mentioned, but in 1997, i sat through a trade-dress lawsuit between winemakers Gallo and Kendall-Jackson.

Gallo had just launched their Turning Leaf brand, which had a logo quite similar to Kendall-Jackson's multicolored leaf (and cost about $5 less a bottle).

(imo) the case hinged upon the color of the leaf. unfortunately for KJ, their lawyers claim that a leaf of such colors couldn't exist in nature. then Gallo (who had much more resources) hired some dude to scour the forest, and i'll be damned if he didn't find the exact KJ leaf out there. ouch! it was a fairly interesting case (if you're interested in trademark law).

as others have said, it's not "owning" a color, it's protecting a trademark. it happens every day. if you've got a problem with that, you need to rail at bigger issues of commerce law.
posted by mrgrimm at 12:02 PM on August 12, 2004


if you've got a problem with that, you need to rail at bigger issues of commerce law.

I do. And I do.
posted by rushmc at 1:14 PM on August 12, 2004


TMs are as much for the protection of the consumer as of the company.

Coca-Cola and Nike both have trademarks on their "swooshy" logos: unique design elements that competitors can not use. Coca-Cola also has a TM on its particular colour red.

This is fair: if a competitor were to release a product with a swooshy shape in that red, it would be confusing to the consumer.
posted by five fresh fish at 2:21 PM on August 12, 2004


I do. And I do.

hey, i'm with you (partly), but we gotta pick our battles. changing trademark law would be near impossible. stuff like welfare ranching and other ridiculous corporate subsidies are much more winnable (and pressing) issues.
posted by mrgrimm at 3:27 PM on August 12, 2004


This is fair: if a competitor were to release a product with a swooshy shape in that red, it would be confusing to the consumer.

If he were illiterate, perhaps.
posted by rushmc at 5:18 PM on August 12, 2004


Yah? So where you gonna draw the line, rushmc? A can that looks identical to Coca-Cola, but spelled Coco-Cola would be dead easy to mistake, and I think it would clearly be riding on the coattails of a hundred years of intensive and successful branding of the Coke product.

Brand identity is big stuff. The rules, as they are, tend to make sense and are in the best interest of both the companies and the consumers. (The rules as the companies would like to have them might be another issue entirely.)
posted by five fresh fish at 6:38 PM on August 12, 2004


I agree that there should be some formalized regulation, fff, both for consumer and corporate protection. I don't claim to know where the line should be drawn, but it seems inarguable after the past few years that it's so far wrong right now (and getting worse) that IP law is more of a burden to society than a benefit.
posted by rushmc at 10:15 PM on August 12, 2004


Patent law has been that way. And there has been a lot of silliness regarding domain names. Starbucks hasn't been helping things with its silly claims against coffeeshops that have been around longer than it has, either.

Off the top of my head, though, I can't think of too many egregrious cases involving colour and logo claims. Probably mostly because it takes a long time and a lot of advertising to establish any sort of comprehensive claim to such things.
posted by five fresh fish at 5:36 AM on August 13, 2004


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