Tough Mudder Threatens Local Rotary Club Over 'Significant Use Of The Color Orange'

Trademark

from the it's-the-new-black dept

While most minds will naturally recoil at the idea of a single company getting a trademark on an entire color for use in a certain marketplace, it’s a thing that exists. And it exists widely enough that even smallish entities are getting in on this game. Far from the game T-Mobile likes to play in pretending it owns all uses of the color magenta in every market, it’s becoming more common to see lesser known companies trademark base colors such as purple and yellow for their markets. If the idea that these basic colors can be locked up commercially in this way strikes you as laughable, your antennae are tuned correctly.

But as this goes is useful in one particular way: it produces some truly hilarious content from the lawyers when it comes to enforcing these broad color trademarks. The most recent example of this would be Tough Mudder Inc., the company that collects money from people who want to run an obstacle course, which sent a threat letter to a local Rotary Club for putting on its own charity obstacle run and daring to use a color you just might recognize as common.

Members of the Raymond Area Rotary Club are seeing red after being warned that the club’s use of the color orange to promote its upcoming Thunder Run 5K obstacle race violates a trademark held by Tough Mudder Inc., a large organization that holds similar obstacle races worldwide.

In his email, Tough Mudder associate counsel Michael Rosen wrote that the club had engaged in “significant use of the color orange” on its website, www.thunderrunnh.com. “As you probably know, we have an obligation to police our intellectual property. Accordingly, we have a federal trademark to such color in connection with obstacle course mud runs, so we are kindly asking that you refrain from such significant use on your website,” Rosen wrote in his email.

A concern about a “significant use of the color orange” is one of those things that only an out of control trademark culture can produce. In no other arena would that kind of silliness be tolerated, but because the Trademark Office has declined to exert even the barest amount of scrutiny on the matter of trademarking colors, here we are. By the way, here is an image of the “offending” site side by side with that of Tough Mudder.

If your face isn’t in your palm at this point, it should be. The folks at the Rotary Club are understandably irritated. And they chose to let it show when communicating back to Tough Mudder Inc.

Rotary member Joe Pratt, the Thunder Run course director, was surprised to hear from Tough Mudder.

“My first reaction was amusement, and I was impressed that we would show up on their radar,” said Pratt, a Nottingham resident.

Pratt fired off an email response to Tough Mudder that said, in part, “I’m going to put off an admonishing call to our pro bono webmaster since I am fairly certain you boys are not going to spend significant assets or energy to deal with the laughable implication that we are encroaching, through color trickery, on your trademarked intellectual property. It is somewhat disconcerting that in David and Goliath form it is possible to litigate against a nonprofit that has a primary goal to eradicate polio worldwide.”

It’s hard to say the snark in the email is undeserved. This is the problem with allowing base and common colors to be trademarked in this way. It’s one thing is some specific shade of a color has gained significance in the marketplace, but nobody equates the color orange with Tough Mudder. Orange is orange.

To that end, the Rotary Club has said it isn’t changing its coloration for this year’s event, though it might for future events.

Pratt said the club might consider changing the color for next year’s event, but not this year.

“If we have to go to mauve or burnt cayenne, maybe we will next year,” he said.

Funny, but sad.

Filed Under: orange, rotary club, tough mudder, trademark