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.