Know Your Rights is Engadget's new technology law series, written by our own totally punk copyright attorney Nilay Patel. 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?
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?
Of course you can. Now go de-magenta everything, Randy Rebel. It looks hideous around here.