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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.
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.
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Reader Comments (rss)
(Flattened / Threaded)
FFB38D is mine!
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Re: FFB38D is mine!
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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.
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All of your colors are belong tu us!
I know, let's trademark, copyright and patent the color! /sweetjesus
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Color trademarks
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.
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TESS Search
I think they should use the phrase "knitting needles joined by one purple cable".
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But the statement that purple in general has been trademarked for this product is ludicrously broad.
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Freetards should stop complaining
It's only a trademark, why get bent out of shape?
It's not like anyone has ever, ever abused a trademark.
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3M got there first
http://boingboing.net/2010/10/25/3m-claims-ownership.html
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Re: Re: FFB38D is mine!
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...
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Re: Re: FFB38D is mine!
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Re: Re: Re: FFB38D is mine!
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Re: All of your colors are belong tu us!
Only subtractive colors.
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AS USUAL, YOU"RE JUST GUESSING, MIKE.
"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.
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It's not a "Registered" trademark
There is no scrutiny on a trademark (tm), but there certainly is on a registered trademark (R).
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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.
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Re: Color trademarks
These are, indeed, very rarely granted...with O-C being the most prominent example.
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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.
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I don't see the problem
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.
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Re: Re: FFB38D is mine!
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Re: AS USUAL, YOU"RE JUST GUESSING, MIKE.
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Only in the States...
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Trademark notice and "full trademark"?
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.
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Re: Re: Color trademarks
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Re: Trademark notice and "full trademark"?
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Mashup or derivative work?
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Re: purple flowers
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Re: Re: purple flowers
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Re: AS USUAL, YOU"RE JUST GUESSING, MIKE.
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Folks, this is not how trademarks work.
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Isn't the coloUr of your little icon next to your name Purple ?
Or is it puce ?
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John D'oh!
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Re: I don't see the problem
"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.
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Re: Re: I don't see the problem
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Re: Mashup or derivative work?
but doesn't FFB38C constitute prior art?
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Re: John Deere Green...
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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
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Re: Re: FFB38D is mine!
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Re: Mashup or derivative work?
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Re: Re: Mashup or derivative work?
Technically it's the same "except for one small nibble". ;)
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Re: TESS Search
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.
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