Know Your Rights: Does T-Mobile really own magenta?

Know Your Rights is Engadget's new technology law series, written by our own totally punk copyright attorney Nilay Patel, of the Chicago firm Agency 68. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world. Disclaimer: Although this post was written by an attorney, it is not meant as legal advice or analysis and should not be taken as such.

UPDATE: This story has gotten way, way funnier -- T-Mobile's parent company, Deutche Telekom, asked Engadget Mobile to stop using magenta. No, seriously. Full details here.

Hey, does T-Mobile really own magenta? I was just about to redesign my blog, and that was going to be the main color.

Really? Maybe T-Mo should sue you.

Come on, I've been hearing this everywhere. 1265 Diggs can't be wrong.

Well, they're not wrong, they're just less than right. T-Mobile's disclaimers certainly do say that "the magenta color" is a T-Mobile trademark.

So there you go! That's so stupid! The system is broken! Everyone is corrupt! How can a corporation own a color?! I've already skipped down and begun flaming!

Chill out, Sparky. T-Mobile doesn't "own" anything here, least of all a color. That's the part everyone seems to have missed. T-Mobile has what appears to be a German trademark on that specific magenta color (RAL 4010, specifically) as it relates to their branding, but that doesn't really affect the average consumer.

Besides, this isn't some radical new development. Lot of other companies have registered color trademarks -- Owens-Corning has a trademark on the use of pink for insulation, Tiffany & Co. has a trademark on that certain blue color it uses for jewelry boxes, and UPS has a trademark on brown. Interesting you haven't seen UPS suing Microsoft over that itty-bitty Zune thing, no?

No, but come on, I heard T-Mo's been suing everyone that dares to use magenta.

Really? From everything we can find, it's only sued two companies over the use of RAL 4010, and both were in Germany. One of them was a competing cell carrier, even. Are you sure you're not getting over-excited, here?

Don't get too smug, lawyer-boy. You might get some on your spats.

Fine. Let's say, hypothetically, that you're using magenta on your website and T-Mobile decides to drag you into court. In order to prove that you're infringing its magenta trademark, it's going to have to demonstrate that:

• You're using "their" magenta
• You're using it to sell, distribute, or advertise a telecommunications product
• The way you're using it is likely to deceive or confuse consumers into thinking T-Mobile is somehow involved.

Now, to analyze that last part, a court would balance out several factors, including:

• The strength of T-Mobile's magenta trademark -- how distinctive it is
• The similarity of your use to T-Mobile's use
• The similarity of your products
• Whether or not people are actually confused
• Whether or not you're straight-up trying to trick people into thinking you're affiliated with T-Mobile
• The sophistication of consumers in the telecommunications market

So in order to "own" magenta and enforce its trademark against you, T-Mobile would basically have to prove that you're advertising or selling a telecommunications service with a super similar shade of magenta that everyone recognizes as being T-Mobile's in a way that makes people think T-Mobile is affiliated with you. You're not doing that, are you?

Um, no.

So what's the problem, then?

That still doesn't mean I think it's right. I mean, it's just a color. Why is that disclaimer even there if T-Mobile isn't trying to bully people?

Or it's trying to put other companies on notice that T-Mobile considers the magenta color a part of their brand, to avoid further legal complication.

Look, let's start over here. Trademarks aren't easy to get, and they're not necessarily easy to keep -- there are a lot of rules to follow for a company to get and maintain a mark, but the main idea is that consumers shouldn't be confused about where their purchases are coming from. That's really it. If T-Mobile is of the opinion that it's done such a good job associating itself with magenta that any other use of magenta would confuse consumers, it can certainly try to sue its way to glory, but that doesn't seem to be the case here -- it's just covering its ass, because that's what gigantic companies do in small-print disclaimers. Not as much fun to rail against, but you can probably find something else, no?

Probably.

Of course you can. Now go de-magenta everything, Randy Rebel. It looks hideous around here.

[BowserUSC @ Nov 9th 2007 5:01PM]

I helped make some University of Southern California t-shirts and we had to use slightly different colors than the school was using in their official merchandise. If we didn't the school could have given us some trouble.

[Steve-O @ Nov 9th 2007 5:09PM]

Has anyone ever heard of Pantone?

[Juice Daddy @ Nov 9th 2007 6:02PM]

why yes..

that said, they cannot "own" magenta, they have no rights to that color


however, they may be able to copyright certain uses of the specific pantone color they use.

[Jeremy @ Nov 9th 2007 5:15PM]

So considering all that,
would Engadget Mobile be affected in any way?
The logo has the same color!

Oh, no!

:P

[modenadude @ Nov 9th 2007 8:21PM]

wait, Engadget Mobile isn't actually Engadge T-Mobile?!

I crack myself up.

[Chrismix @ Nov 9th 2007 5:17PM]

lolz, this is great. i like this new feature. very amusing and informative.

[ester @ Nov 9th 2007 5:18PM]

The thing to keep in mind is that this is a trademark, not a copyright or patent. So they don't "own" magenta, but are given reserved use of their specific color of magenta for use in identifying their company (in Germany). It's no different than Apple protecting the use of the word iPod, or better yet Microsoft and Windows. Context plays a very important role.

[Nick @ Nov 10th 2007 5:44PM]

starbucks has the same thing going as Tmobile with the "starbucks green".

[RonJ @ Nov 9th 2007 5:27PM]

"Interesting you haven't seen UPS suing Microsoft over that itty-bitty Zune thing, no?"

It might be more of an issue if people were actually buying the Zune. zing!

[rzlmlchm009 @ Nov 9th 2007 5:35PM]

That was really witty!

*ROFL while RonJ bends over and takes it from Steve Jobs for $100 store credit*

[jperry @ Nov 9th 2007 6:09PM]

Hey...$100 apple store credit for 2 minutes of pain/pleasure. Surely any fanboy would take that offer.

[rzlmlchm009 @ Nov 9th 2007 6:50PM]

Who said for 2 minutes? Some have been taking it for most of their lives.

*stopped laughing, stunned that someone would think that "taking it" from Steve Jobs would be pleasurable*

[RonJ @ Nov 9th 2007 7:34PM]

rzlmlchm009,

I don't really recall making any Apple fan-boy statements in that comment. You must have difficulties reading. Are you from Texas by chance? At least you picked up on the fact that I was mocking the Zune though, good job! I hope you are having a blast with "the social". It sure sounds like a really good time.

So for the rest of you that are literate, here is a link of some interesting sales stats on the Zune from Woot. It's pretty funny.

http://www.woot.com/Blog/BlogEntry.aspx?BlogEntryId=3115

[jbodar @ Nov 9th 2007 10:09PM]

@jperry

Two minutes? So are you saying that Jobs has no staying-power or you're just that good?

[jperry @ Nov 10th 2007 12:38PM]

Well, it's basically a combination of the two.

[potato @ Nov 9th 2007 5:27PM]

Absolutely, and courts do not blindly enforce these laws either. The whole point of trademarking a color is to prevent others from offering similar services by exploiting the existing brand recognition of the original company, or worse, to lure customers to their own products by impersonating the original company.

If the above isn't happening, you will be VERY hard-pressed to find a court that will rule in T-Mobile's (or UPS, or anyone else's) favor.

[tobias @ Nov 9th 2007 5:31PM]

I read somewhere that a ICT company in the Netherlands which used magenta in their logo + flags got a letter from T-mobile "asking" them to drop the color.

[Dan @ Nov 9th 2007 5:36PM]

No prizes for guessing the trademark colour for Orange

[AlexP @ Nov 9th 2007 6:18PM]

Pepsi co.

[Ethan @ Nov 9th 2007 6:19PM]

It's ... hold on, I know this one ...

[VQH @ Nov 9th 2007 5:45PM]

Does UPS own brown?

What can brown do for you?

[Steven @ Nov 9th 2007 5:46PM]

I used to work for Caterpillar, and they have their own color (Caterpilar Yellow). John Deer has a type of green also trademarked, I believe.

[james @ Nov 9th 2007 5:54PM]

Coca-Cola has their red trademarked, and the color was actually developed and standardized by Pantone.

But Pantone is not the only name in color standards...

[rp @ Nov 12th 2007 1:19PM]

yes, i believe that ALL colors and related standards were originally developed by a little known company called mother nature. hopefully pantone gets their papers in order when the highest of all authorities comes calling

[3rdsun @ Nov 9th 2007 6:38PM]

Anyone with anything white gadget better cease and desist, Apple will be taking you to the cleaners

[Raphael @ Nov 9th 2007 10:10PM]

You're right, they have in fact trademarked the shade of white they used for the iBook (and presumably the MacBook too).
I haven't head of any lawsuits involving colours yet but Apple has so many that this thing would probably go unnoticed.

[Robert Liebsch @ Nov 9th 2007 6:47PM]

Um, UPS owns a specific color called Pullman Brown.
All colors are just chemicals really. So that particular chemical composition is patented by UPS.
UPS isn't the only one to do it. There is an artist, whose work I have seen recently, revolved around composing a smart blue. It was a smart blue, It hurt to look at it. It was amazing and beautiful and painful, beyond description. The point is, however, the color was found by working with chemists to find the composition of chemicals that would yield a color.

[Nilay Patel @ Nov 9th 2007 7:57PM]

I've been looking for a patent for UPS brown, and I'm not seeing one, but I'm a bit rusty with those type of searches. The trademark database has three entries for UPS brown (Pantone 462C), however: generally, on uniforms, and on trucks.

http://tess2.uspto.gov/bin/showfield?f=doc&state=93choa.8.1
http://tess2.uspto.gov/bin/showfield?f=doc&state=93choa.8.5
http://tess2.uspto.gov/bin/showfield?f=doc&state=93choa.8.6

I am aware of Yves Klein and his patented blue, but I'd love any more info you have about a UPS brown patent.

[Robert Liebsch @ Nov 9th 2007 8:41PM]

I worked at UPS to get through University. It was in the orientation. I just remember thinking, "patented a color!?!?" ...and it is called Pulman Brown.

[Robert Liebsch @ Nov 9th 2007 8:44PM]

Hrm, The Interwebs all say "trademark" none say "patent." I am corrected.

[womble_101 @ Nov 10th 2007 12:55PM]

I don't know, but I thought colours were actually combinations of different parts of the spectrum of light, not chemicals. À la Radiohead, "I Might Be Wrong"...

[paul @ Nov 9th 2007 7:17PM]

Cadbury's trademarked 'the colour purple'. Read the small print on your bar or dairy milk.

Note that doesn't infringe on any literary trademarks. IE, the point of this article.

[jason @ Nov 9th 2007 7:54PM]

I heard that Cadbury is trying to sue Oprah Winfrey for her part in the 1985 blockbuster "The Color Purple" due to the blatant trademark infringement.....that and the fact that Oprah has a lot of dough.

[Timothy @ Nov 9th 2007 8:19PM]

Someone correct me if I am wrong, I heard that the Boston Red Sox, own the color green that the stadium is painted in, its called fenway green. Disclamer: I am a Yankees Fan.

[JAmerican @ Nov 9th 2007 8:54PM]

I thought it was Pink. LOL

[Louis Fattorusso @ Nov 9th 2007 11:28PM]

I remember a few years ago in Japan when Apple did the same thing here with that blue color

[flipfido @ Nov 10th 2007 4:23AM]

The pinciple involved here is what is called 'fencing in the commons'. A trademark for the word 'Shoe' will be difficult to defend because it is taking away from the English language. That's why trademarks are mostly made up words or acronyms. Take the 'Pentium' trademark for example, Intel stopped trademarking numbers like the 486 because defending a challenge to that trademark would be difficult because preventing the public from using a specific number would be taking away from the public the full use of numbers. Other examples are 'Blu-Ray' instead of 'Blue Ray' and 'IBM'. The point behind trademark law is to protect the connection between the mark and the services/products of a business. Broadly speaking, this is different from copyright law which protects the expression of ideas, but not the idea itself (doesn't have to be creative just original expression), and from patent law which encourages people to innovate by letting them make money off a novel idea or method for a fixed period before it expires and then it becomes public domain. So far as the specific mangenta colour used by T-Mobile is concerned it's not the colour itself that is critical. The Courts do not hold the public to have photographic and exact memories, instead the test is whether a member of the public of 'ordinary intelligence' would be misled into thinking that the product is connected with T-Mobile. It cannot be said that the public in passing are able to distinguish between plain old magenta with RAL4010 magenta. So just because the local boys' football team are wearing magenta uniforms doesn't meant that they can be sued successfully, or that product packaging cannot use magenta. However, if a competing mark can lead to confusion with T-Mobile's mark, including colour or design, then there's a problem. Trademarks are first come first serve, but just because it is registered successfully does not mean that it cannot be challenged. Just because someone sues doesn't mean they'll win, and if they lose they face costs being awarded against them, or if they threaten to sue on a groundless basis you can then sue them back for groundless threats and seek damages (depends on jurisdiction). An example is linoleum (the stuff you cover floors with), lino used to be a trademark, but it became so commonly used to associate with the product that it lost its connection with the trademark owner. The lino mark thereby became 'generic' i.e. part of the English language and therefore the mark is lost. The Ugg boots trademark is another example, it's defendable in the United States but in Australia it's a generic term. Why do you think corporations spend so much money on advertising reminding the public of their mark? Such as 'Coke' instead of cola and 'Band-Aid' instead of adhesive strips. A lot of people are surprised that 'Band-Aid' is a trademark of Johnston & Johnston. Without all the advertising it runs the risk of becomming a generic term. So all the stuff in the post applies as well and I hope this adds to it. Needless to say intellectual property is a complex area of law, e.g. ability to plant a flag in a patent but not so planting has consequences, so this comment comes with the disclaimer that you are not to rely on it as legal advice and that it's provided by way of general comment. Consult with your attorney for formal legal advice specific to your circumstances and jurisdiction. Although that football team with the pink .. I mean magenta .. uniforms might want to reconsider.

[trademark registration @ Nov 10th 2007 4:22PM]

UPS has a trademark for the color brown, and Tiffany's has a trademark for their blue color. Color trademarks are hard to come by, because you basically have to show that the public has come to associate that particular color with your goods or services. But if that's something you can show, then you can definitely get a trademark registration for a color. Interestingly, you can also trademark sounds (think of the NBC jingle consisting of three notes) and even smells!

[sud @ Nov 10th 2007 8:29PM]

So Nilay, that means they can't sue you over your EP's magenta cover?

http://h70s.com/

I hear Postal Service and Jodeci are forming a legal team to reclaim their sound, tho!

[Ihar `Philips` Filipau @ Nov 10th 2007 9:57PM]

btw, RAL 4010 color is called "Telemagenta."

Coincidence?

[klew @ Nov 11th 2007 1:09AM]

The San Jose Sharks have a similar plan on "Pacific Teal" which was the color of their uniforms.

[Dan @ Nov 12th 2007 9:12AM]

But what about that company that used to be called Magenta News and was renamed to Meltwater News? I thought that had something to do with the T-Mobile color thing. Does anyone know?

[Rick @ Mar 26th 2008 8:00PM]

Magenta?
Is that like pink?