The Color Purple... Trademarked

from the for-what-now? dept

Reader Susan sent over this tidbit. Apparently she was shopping for knitting needles, and came across a particular needle, under which was the claim that "the color purple is a trademark of CraftsAmericana Group, Inc."
Susan wanted to know how someone could claim a trademark on the color purple. While a quick search didn't turn up the relevant trademark (I didn't look very hard), I'm guessing that it's quite similar to many other trademarks on colors. I tend to think that almost all "color trademarks" are pretty silly, but the idea is that if you use a color in such a way that your brand is totally identified with it, then perhaps you should have the right to trademark the use of that specific color in that specific market. Unfortunately, it doesn't always work that way. We've discussed in the past T-Mobile's trademark on magenta, which it used to threaten a news site, and which it tried (but failed) to use again Telia in Denmark. The problem there was that Telia and T-Mobile don't compete in the same markets... and the magenta was a different shade.

That said, it certainly seems like CraftsAmericana's basic claim here is pretty broad. It doesn't say that the company has trademarked purple in specific markets for specific products, but implies (almost certainly falsely) that it honestly holds a full trademark on "the color purple" and can stop others from using it, even outside of its market. That's the part that I find most troubling. Just the setup of that "warning" seems designed to overly frighten people from using the color purple in perfectly legal ways.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 8:26am

    FFB38D is mine!

    Stay the fuck away from it!

     

    reply to this | link to this | view in thread ]

  2.  
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    Anonymous Coward, Nov 10th, 2011 @ 8:29am

    Wouldn't it be more under trade dress?

     

    reply to this | link to this | view in thread ]

  3.  
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    Chronno S. Trigger (profile), Nov 10th, 2011 @ 8:36am

    Re: FFB38D is mine!

    Can I use FFB38E?

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Kristen, Nov 10th, 2011 @ 8:40am

    What would Alice Walker say?

     

    reply to this | link to this | view in thread ]

  5.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 8:42am

    "Pantone asserts that their lists of color numbers and pigment values are the intellectual property of Pantone and free use of the list is not allowed.[12] This is frequently held as a reason why Pantone colors cannot be supported in Open Source software such as GNU Image Manipulation Program (GIMP) and are not often found in low-cost software.[13] Pantone palettes supplied by printer manufacturers can be obtained freely, and, depending on supplier, do not come with usage restrictions beyond a sales ban on hard copies of the palette."
    http://en.wikipedia.org/wiki/Pantone

    It gets worst than that still, since Adobe also do the same thing with their color tables.

    http://www.stormbear.com/2007/04/16/open-source-graphic-arts-software/

    People should learn not to use closed standards.

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 8:42am

    I wonder if John Deere has a trademark on that particular shade of green they use?

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    anonymous, Nov 10th, 2011 @ 8:42am

    so when are they going to take legal action against purple flowers then? or maybe take flower growers and garden centers to court for selling/advertising flowers that are purple in colour? how much more ridiculous are these types of claims going to get?

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Ninja (profile), Nov 10th, 2011 @ 8:44am

    All of your colors are belong tu us!

    So if I trademark black I automagically own all the other colors? What about copyright? (who was the dumbass that wrote blu wrong in the blue-ray discs?! /derp).

    I know, let's trademark, copyright and patent the color! /sweetjesus

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 8:45am

    It should read, "THIS color purple..." instead of, "The color purple..."

     

    reply to this | link to this | view in thread ]

  10.  
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    Chris Ball (profile), Nov 10th, 2011 @ 8:46am

    Color trademarks

    Most famously, Owens-Corning has a trademark on the color pink for fiberglass insulation. Yeah, that stuff is not naturally that color. :)

    There is no inherent bar to trademarking a color, though as you might expect, the USPTO doesn't go giving out trademark registrations for colors willy-nilly. The color can't be functional or merely decorative, and you generally have to show to a high standard that your use of the color is distinctive and well-known.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 8:50am

    TESS Search

    In the USPTO's TESS Trademark Search, you probably want to look at 77828736. Inside is Design Search Code 29.02.05 Violet or purple.

    I think they should use the phrase "knitting needles joined by one purple cable".

     

    reply to this | link to this | view in thread ]

  12.  
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    Fushta (profile), Nov 10th, 2011 @ 8:50am

    Crayola is boned, along with the Grape Ape and the original Hulk.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 8:55am

    Re:

    Seriously, this. I could understand that, in the true meaning of trademark, that logo in purple would be the measure of authenticity to avoid customer confusion. If a counterfeiter used the logo but made it green, I could see a case.

    But the statement that purple in general has been trademarked for this product is ludicrously broad.

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:02am

    Re:

    Agreed, but people should learn that closed standards are not standards.

     

    reply to this | link to this | view in thread ]

  15.  
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    DannyB (profile), Nov 10th, 2011 @ 9:05am

    Freetards should stop complaining

    At least they didn't copyright or patent that color.

    It's only a trademark, why get bent out of shape?

    It's not like anyone has ever, ever abused a trademark.

     

    reply to this | link to this | view in thread ]

  16.  
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    ChrisB (profile), Nov 10th, 2011 @ 9:14am

    3M got there first

    Sorry Crafts Americana, 3M got there first:
    http://boingboing.net/2010/10/25/3m-claims-ownership.html

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:15am

    Re:

    And Donatello.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:15am

    Re: Re: FFB38D is mine!

    Those colors are ugly. You guys can have it.

    I'll go for 09 F9 11 02 9D 74 E3 5B D8 41 56 C5 63 56 88 C0.

    Hmmm...that's not going to work. HTML color notation represents colors by using three bytes. Okay, I'll claim #09F911. It looks better than #5688C0.

    This number, I mean, color is mine!

    As for #800080, I'm sure I can work out a cross-licensing deal with this yarn company...

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:21am

    No problem in Canada.... nothing about the COLOUR Purple.

     

    reply to this | link to this | view in thread ]

  20.  
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    Ima Fish (profile), Nov 10th, 2011 @ 9:21am

    I think the artist formerly and currently known as Prince would have something to say about this.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:23am

    Re: Re: FFB38D is mine!

    Of course. I also want B00B1E.

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:23am

    I thought the color purple was a movie.

     

    reply to this | link to this | view in thread ]

  23.  
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    freak (profile), Nov 10th, 2011 @ 9:27am

    Re: Re: Re: FFB38D is mine!

    I guess I'm stuck with B00B51 .. ..

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    John Doe, Nov 10th, 2011 @ 9:28am

    Re:

    I hope their trademark predates the movie or they might be in trouble. :)

     

    reply to this | link to this | view in thread ]

  25.  
    icon
    ChurchHatesTucker (profile), Nov 10th, 2011 @ 9:30am

    Re: All of your colors are belong tu us!

    So if I trademark black I automagically own all the other colors?

    Only subtractive colors.

     

    reply to this | link to this | view in thread ]

  26.  
    identicon
    out_of_the_blue, Nov 10th, 2011 @ 9:32am

    AS USUAL, YOU"RE JUST GUESSING, MIKE.

    "While a quick search didn't turn up the relevant trademark (I didn't look very hard), I'm guessing..."

    "even outside of its market" -- The ONLY instance you've got is IN its market.

    So on a GUESS you posit some trademark use outside of this very narrow market, and your fanboy-trolls dutifully take it up as though important. Them's the yuks here that keep me coming back.

     

    reply to this | link to this | view in thread ]

  27.  
    identicon
    Steve Collins, Nov 10th, 2011 @ 9:38am

    It's not a "Registered" trademark

    My pink shorts, after washing them with my red t-shirt, can be my trademarked color. The difference is I cannot have a registered trademark on it (R in a circle).

    There is no scrutiny on a trademark (tm), but there certainly is on a registered trademark (R).

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:39am

    I thought you could only trademark the name of a color? That's why car makers have really weird names for the color of the cars.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:45am

    What is "a full trademark?"

    They can have trademark rights without a trademark registration. In fact, their use of the TM symbol (instead of the (R) symbol) indicates that they do not have a registration.

     

    reply to this | link to this | view in thread ]

  30.  
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    fb39ca4 (profile), Nov 10th, 2011 @ 9:46am

    I trademark 00D5FF!

     

    reply to this | link to this | view in thread ]

  31.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:46am

    Re: Color trademarks

    Make that "a VERY,IF NOT EXTREMELY, high standard..."

    These are, indeed, very rarely granted...with O-C being the most prominent example.

     

    reply to this | link to this | view in thread ]

  32.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:48am

    Also, how does their statement "imply" that they can stop people from using their claimed trademark outside their market?

    I don't think saying "X is our trademark" implies "we have rights in X that go way beyond any reasonable trademark claim," unless you happen to be an anti-IP hammer looking for a bad IP nail.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    RandomJay, Nov 10th, 2011 @ 9:48am

    I don't see the problem

    The trademark on the color purple for CraftsAmericana is only valid and judicially enforceable so long as they can establish "acquired distinctiveness" in the market. To put it simply, CraftsAmericana can have trademark protection on purple only once the needle-buying market recognizes that Purple=CraftsAmericana.

    One of T-Mobile's big problems was that while magenta is prominent in their branding and marketing, simply seeing the color in relation to businesses selling mobile phone services does not invoke an immediate association with T-Mobile. That being said, if a new mobile service provider decided to use a shade in the magenta family to distinguish there brand, I think a court would be very likely to find infringement since the phone-buying public likely does associate magenta with the TMO a carrier.

    How do companies prove distinctiveness? Polling. A scientifically conducted poll can serve as the some of the strongest evidence of acquired distinctiveness. If I take four color swatches, blue, red, magenta, and yellow and ask the public what product or company they each represent, I'd get very few responses indicating any of the big four carriers. If I take that same poll of consumers shopping for a new mobile service provider, those thinking about the four carriers, there is a significantly increased likelihood , though perhaps not dispositive, that they could identify each of the colors as representing a carrier. Finally, if I prompt them saying in terms of mobile phone services, what do these colors mean to you? That's how I might establish that my color has acquired distinctiveness. In order for there to be infringement though, there must be a likelihood of confusion which is significantly more onerous to prove. When TMO sued (foolishly in my mind), they likely could have at least demonstrated the necessary secondary meaning to establish the color as a mark within their market.

    The issue is the same for CraftsAmericana. There is no reasonable belief that, in commerce, purple is now the sole providence of a small needle company. However, by establishing a proposed mark in that color of needle, it isn't an ominous "warning." What they're doing is establishing actual notice to all other needle companies that they believe they have developed (or intend to develop) secondary meaning in the color. From a practical standpoint it's a way to avoid unnecessary litigation. If someone else's claims the mark, then that litigation is necessary, but by drawing clear boundaries, it helps competitors from accidentally infringing a mark and getting sued. The use of "TM" (common law/non-federally registered trade mark) isn't generally restricted, under your "warning" rationale, any company that uses "TM" in their branding, marketing, or trade dress is chilling commercial behavior.

    I see nothing unreasonable about a company calling a specific color its tradmark. The burden to prove its a valid mark (through acquired distinctiveness) and that there is a liklihood of confusion still lie with the company claiming the color mark. Claiming a color mark in no sense runs afoul of rational practices, especially since the product is confined to a niche market. I also have a hard time believing that any business could see CraftsAmericana's packaging and assume their intent is to claim all rights to the color purple.

     

    reply to this | link to this | view in thread ]

  34.  
    icon
    Blatant Coward (profile), Nov 10th, 2011 @ 9:52am

    Re: Re: FFB38D is mine!

    FREEBIRRRRRRD!

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    Blatant Coward (profile), Nov 10th, 2011 @ 9:54am

    Re:

    Since it's on the Internet, it won't affect Prince. The Internet is over in his world.

     

    reply to this | link to this | view in thread ]

  36.  
    identicon
    Another AC, Nov 10th, 2011 @ 9:58am

    Re: AS USUAL, YOU"RE JUST GUESSING, MIKE.

    OK, take your meds and read the article again. It doesn't say what you think it says :)

     

    reply to this | link to this | view in thread ]

  37.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 10:03am

    Re:

    nope

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    Jeffrey Nonken (profile), Nov 10th, 2011 @ 10:07am

    I've just trademarked the color 216-190-216. Steam, I'm looking at you! I expect to be rich before the end of the year. See ya, suckers!

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 10:23am

    Re:

    A trade-dress is a trademark but on the look n' feel of a brand ratter then the name.

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    NattyFido (profile), Nov 10th, 2011 @ 10:33am

    Only in the States...

    because the rest of the English speaking world would write 'COLOUR purple'!

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    ChairmanH, Nov 10th, 2011 @ 10:41am

    Trademark notice and "full trademark"?

    Has anyone ever seen a trademark notice that provided a relevant product/market limitation on the rights claimed? It's completely ridiculous to bad-mouth a company for not providing such a limitation. No one does that.

    And what exactly is a "full trademark"? Even dilution claims, which do not require any showing of confusion (actual or likely), have their limits and do not confer complete and total property-esque rights in a mark.

    Finally, you should really stop using "trademark" as a verb. It only perpetuates the misconception that all you need to do is file some papers with the federal government and you magically acquire bullet-proof trademark rights. This misconception seems to be shared by most of the commenters here.

     

    reply to this | link to this | view in thread ]

  42.  
    icon
    btrussell (profile), Nov 10th, 2011 @ 10:46am

    Re: Re: Color trademarks

    Your avatar is infringing!

     

    reply to this | link to this | view in thread ]

  43.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 10:52am

    Re:

    Oprah's gonna be pissed, too.

     

    reply to this | link to this | view in thread ]

  44.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 10:52am

    Re:

    She say shit MF I gots a 1983 Pulitzer Prize for Fiction and the National Book Award for Fiction, and I gots Danny Glover, Whoopi Goldberg, Oprah Winfrey ons my side.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 10:53am

    Re: Trademark notice and "full trademark"?

    word

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    MrWilson, Nov 10th, 2011 @ 10:54am

    Re:

    The original Hulk was very briefly gray and then green.

     

    reply to this | link to this | view in thread ]

  47.  
    icon
    ArkieGuy (profile), Nov 10th, 2011 @ 11:13am

    Mashup or derivative work?

    I'm sure FFB38E is a derivative work of FFB38D ("it's exactly the same as it's predecessor except for one tiny tiny bit")! At the very least it's a mashup. So, according to copyright maximists, the answer would be NO!

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 11:15am

    Re: purple flowers

    I'm surprised the makers of the classic movie haven't trademarked or copyright the phrase "The Color " to prevent us from using "The color blue" or the like.

     

    reply to this | link to this | view in thread ]

  49.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 11:17am

    Re: Re: purple flowers

    Bother. The interpreter left out my < (less than) colorname > (greater than) to designate a variable choice.

     

    reply to this | link to this | view in thread ]

  50.  
    icon
    JMT (profile), Nov 10th, 2011 @ 12:36pm

    Re: Re:

    With purple pants.

     

    reply to this | link to this | view in thread ]

  51.  
    icon
    technomage (profile), Nov 10th, 2011 @ 12:37pm

    Re: AS USUAL, YOU"RE JUST GUESSING, MIKE.

    I'll trademark the word and color blue inside the "blog/forum/website/newpaper/etc." comment market! OOTB, consider yourself in violation ;)

     

    reply to this | link to this | view in thread ]

  52.  
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    Liz (profile), Nov 10th, 2011 @ 12:40pm

    Re:

    Yes. Also Joe Diffie has a copyright on the song.

     

    reply to this | link to this | view in thread ]

  53.  
    icon
    Liz (profile), Nov 10th, 2011 @ 12:47pm

    I see a general misconception that trademark = copyright or patent. And that anyone who uses it must pay a fee to whomever holds that bit if IP.

    Folks, this is not how trademarks work.

     

    reply to this | link to this | view in thread ]

  54.  
    identicon
    darryl, Nov 10th, 2011 @ 2:08pm

    Re: Re:

    Mr DOE..

    Isn't the coloUr of your little icon next to your name Purple ?

    Or is it puce ?

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 2:10pm

    Re: Re: Re:

    is it John doe or

    John D'oh!

     

    reply to this | link to this | view in thread ]

  56.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 4:32pm

    Re: I don't see the problem

    I also have a hard time believing that any business could see CraftsAmericana's packaging and assume their intent is to claim all rights to the color purple.

    "the color purple is a trademark of CraftsAmericana Group, Inc."

    I think it's that statement right there on their packaging that could give someone that impression.

     

    reply to this | link to this | view in thread ]

  57.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 4:32pm

    Re: Re: I don't see the problem

    Sorry about the tagging problem.

     

    reply to this | link to this | view in thread ]

  58.  
    identicon
    Digitari, Nov 10th, 2011 @ 5:30pm

    Re: Mashup or derivative work?

    ....I'm sure FFB38E is a derivative work of FFB38D..........


    but doesn't FFB38C constitute prior art?

     

    reply to this | link to this | view in thread ]

  59.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 6:30pm

    Re: John Deere Green...

    ... is actually the trademarked name of that paint color by one of the major paint manufacturers. I'll imagine the manufacturer licensed the name from Deere. So if you wanted to paint your, say, wheelbarrows that green, you'd have to buy "John Deere Green", which would then prove that you KNEW you were using a competitors color.

     

    reply to this | link to this | view in thread ]

  60.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 6:41pm

    "After a 10-year battle, Cadbury now owns the color purple in Australia.
    Last month, Cadbury settled its protracted dispute with Darrell Lea, an Australian confectionery retailer. The dispute was triggered when Cadbury filed to register the color purple as a trademark. The Australian trademark office registered the trademark in 2003, giving the chocolate manufacturer the exclusive right to use purple on chocolate packaging."

    http://hakitree.posterous.com/colour-trademarks-powerful-but-legally-defens-0

     

    reply to this | link to this | view in thread ]

  61.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:05pm

    Re: Re: FFB38D is mine!

    I already own an entire spectra of colors and that color is within the spectra I already own. Nice try though.

     

    reply to this | link to this | view in thread ]

  62.  
    identicon
    Anonymous Coward, Nov 10th, 2011 @ 9:07pm

    Re:

    No, people should learn that the law shouldn't restrict what colors we can use. Then we should actively and aggressively seek to abolish these laws.

     

    reply to this | link to this | view in thread ]

  63.  
    identicon
    jackn, Nov 11th, 2011 @ 9:17am

    Re:

    Bingo!

     

    reply to this | link to this | view in thread ]

  64.  
    identicon
    Anonymous Coward, Nov 11th, 2011 @ 12:22pm

    Re: Mashup or derivative work?

    Actaully, there is a two-bit difference between the two numbers; FFB38E ends with 1110 and FFB38D ends with 1101, so there is actually two tiny bits of difference between the two numbers.

     

    reply to this | link to this | view in thread ]

  65.  
    icon
    ArkieGuy (profile), Nov 14th, 2011 @ 12:14pm

    Re: Re: Mashup or derivative work?

    True... But only if I am the owner of FFB38C, if not it's a whole new invention.

     

    reply to this | link to this | view in thread ]

  66.  
    icon
    ArkieGuy (profile), Nov 14th, 2011 @ 12:14pm

    Re: Re: Mashup or derivative work?

    True... But only if I am the owner of FFB38C, if not it's a whole new invention.

     

    reply to this | link to this | view in thread ]

  67.  
    icon
    ArkieGuy (profile), Nov 14th, 2011 @ 12:19pm

    Re: Re: Mashup or derivative work?

    Grrrr.... Your point is well taken.

    Technically it's the same "except for one small nibble". ;)

     

    reply to this | link to this | view in thread ]

  68.  
    identicon
    Your Friendly Neighborhood Librarian, Nov 22nd, 2011 @ 4:47pm

    Re: TESS Search

    "The color(s) purple is/are claimed as a feature of the mark. The mark consists of the color purple as applied to the flexible needle cable"

    Their marketing material is not an accurate legal statement. Anyone can use the color in other products. Just not knitting needle cables.

    To partly answer RandomJay (below) when it comes to circular cable needles for knitters, it is a big deal. Knit Picks (Crafts Americana Group, Inc. subsidiary) needles are considered one of the more flexible type with the least 'memory', which is of great use to knitters. Trademarking the use of a particular color for that type of cable is a way to bring their products a very visible distinction.

     

    reply to this | link to this | view in thread ]


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