The Color Purple... Trademarked

from the for-what-now? dept

Thu, Nov 10th 2011 8:21am — Mike Masnick

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.

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Filed Under: purple, trademark

69 Comments

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Anonymous Coward, 10 Nov 2011 @ 8:26am

FFB38D is mine!
Stay the fuck away from it!
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- Chronno S. Trigger (profile), 10 Nov 2011 @ 8:36am
  
  Re: FFB38D is mine!
  Can I use FFB38E?
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  - Anonymous Coward, 10 Nov 2011 @ 9:15am
    
    Re: Re: FFB38D is mine!
    Those colors are ugly. You guys can have it.
    
    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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  - Anonymous Coward, 10 Nov 2011 @ 9:23am
    
    Re: Re: FFB38D is mine!
    Of course. I also want B00B1E.
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    - freak (profile), 10 Nov 2011 @ 9:27am
      
      Re: Re: Re: FFB38D is mine!
      I guess I'm stuck with B00B51 .. ..
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  - Blatant Coward (profile), 10 Nov 2011 @ 9:52am
    
    Re: Re: FFB38D is mine!
    FREEBIRRRRRRD!
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  - ArkieGuy (profile), 10 Nov 2011 @ 11:13am
    
    Mashup or derivative work?
    I'm sure FFB38E is a derivative work of FFB38D ("it's exactly the same as it's predecessor except for one tiny tiny bit")! At the very least it's a mashup. So, according to copyright maximists, the answer would be NO!
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    - Digitari, 10 Nov 2011 @ 5:30pm
      
      Re: Mashup or derivative work?
      ....I'm sure FFB38E is a derivative work of FFB38D..........
      
      but doesn't FFB38C constitute prior art?
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      - ArkieGuy (profile), 14 Nov 2011 @ 12:14pm
        
        Re: Re: Mashup or derivative work?
        True... But only if I am the owner of FFB38C, if not it's a whole new invention.
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    - Anonymous Coward, 11 Nov 2011 @ 12:22pm
      
      Re: Mashup or derivative work?
      Actaully, there is a two-bit difference between the two numbers; FFB38E ends with 1110 and FFB38D ends with 1101, so there is actually two tiny bits of difference between the two numbers.
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      - ArkieGuy (profile), 14 Nov 2011 @ 12:14pm
        
        Re: Re: Mashup or derivative work?
        True... But only if I am the owner of FFB38C, if not it's a whole new invention.
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      - ArkieGuy (profile), 14 Nov 2011 @ 12:19pm
        
        Re: Re: Mashup or derivative work?
        Grrrr.... Your point is well taken.
        
        Technically it's the same "except for one small nibble". ;)
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  - Anonymous Coward, 10 Nov 2011 @ 9:05pm
    
    Re: Re: FFB38D is mine!
    I already own an entire spectra of colors and that color is within the spectra I already own. Nice try though.
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Anonymous Coward, 10 Nov 2011 @ 8:29am

Wouldn't it be more under trade dress?
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- Anonymous Coward, 10 Nov 2011 @ 10:23am
  
  Re:
  A trade-dress is a trademark but on the look n' feel of a brand ratter then the name.
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Kristen, 10 Nov 2011 @ 8:40am

What would Alice Walker say?
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- Anonymous Coward, 10 Nov 2011 @ 10:52am
  
  Re:
  Oprah's gonna be pissed, too.
  [ link to this | view in chronology ]
- Anonymous Coward, 10 Nov 2011 @ 10:52am
  
  Re:
  She say shit MF I gots a 1983 Pulitzer Prize for Fiction and the National Book Award for Fiction, and I gots Danny Glover, Whoopi Goldberg, Oprah Winfrey ons my side.
  [ link to this | view in chronology ]
Anonymous Coward, 10 Nov 2011 @ 8:42am

"Pantone asserts that their lists of color numbers and pigment values are the intellectual property of Pantone and free use of the list is not allowed.[12] This is frequently held as a reason why Pantone colors cannot be supported in Open Source software such as GNU Image Manipulation Program (GIMP) and are not often found in low-cost software.[13] Pantone palettes supplied by printer manufacturers can be obtained freely, and, depending on supplier, do not come with usage restrictions beyond a sales ban on hard copies of the palette."
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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- Anonymous Coward, 10 Nov 2011 @ 9:02am
  
  Re:
  Agreed, but people should learn that closed standards are not standards.
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- Anonymous Coward, 10 Nov 2011 @ 9:07pm
  
  Re:
  No, people should learn that the law shouldn't restrict what colors we can use. Then we should actively and aggressively seek to abolish these laws.
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Anonymous Coward, 10 Nov 2011 @ 8:42am

I wonder if John Deere has a trademark on that particular shade of green they use?
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- Liz (profile), 10 Nov 2011 @ 12:40pm
  
  Re:
  Yes. Also Joe Diffie has a copyright on the song.
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- Anonymous Coward, 10 Nov 2011 @ 6:30pm
  
  Re: John Deere Green...
  ... is actually the trademarked name of that paint color by one of the major paint manufacturers. I'll imagine the manufacturer licensed the name from Deere. So if you wanted to paint your, say, wheelbarrows that green, you'd have to buy "John Deere Green", which would then prove that you KNEW you were using a competitors color.
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anonymous, 10 Nov 2011 @ 8:42am

so when are they going to take legal action against purple flowers then? or maybe take flower growers and garden centers to court for selling/advertising flowers that are purple in colour? how much more ridiculous are these types of claims going to get?
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- Anonymous Coward, 10 Nov 2011 @ 11:15am
  
  Re: purple flowers
  I'm surprised the makers of the classic movie haven't trademarked or copyright the phrase "The Color " to prevent us from using "The color blue" or the like.
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  - Anonymous Coward, 10 Nov 2011 @ 11:17am
    
    Re: Re: purple flowers
    Bother. The interpreter left out my < (less than) colorname > (greater than) to designate a variable choice.
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Ninja (profile), 10 Nov 2011 @ 8:44am

All of your colors are belong tu us!
So if I trademark black I automagically own all the other colors? What about copyright? (who was the dumbass that wrote blu wrong in the blue-ray discs?! /derp).

I know, let's trademark, copyright and patent the color! /sweetjesus
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- ChurchHatesTucker (profile), 10 Nov 2011 @ 9:30am
  
  Re: All of your colors are belong tu us!
  So if I trademark black I automagically own all the other colors?
  
  Only subtractive colors.
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Anonymous Coward, 10 Nov 2011 @ 8:45am

It should read, "THIS color purple..." instead of, "The color purple..."
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- Anonymous Coward, 10 Nov 2011 @ 8:55am
  
  Re:
  Seriously, this. I could understand that, in the true meaning of trademark, that logo in purple would be the measure of authenticity to avoid customer confusion. If a counterfeiter used the logo but made it green, I could see a case.
  
  But the statement that purple in general has been trademarked for this product is ludicrously broad.
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Chris Ball (profile), 10 Nov 2011 @ 8:46am

Color trademarks
Most famously, Owens-Corning has a trademark on the color pink for fiberglass insulation. Yeah, that stuff is not naturally that color. :)

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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- Anonymous Coward, 10 Nov 2011 @ 9:46am
  
  Re: Color trademarks
  Make that "a VERY,IF NOT EXTREMELY, high standard..."
  
  These are, indeed, very rarely granted...with O-C being the most prominent example.
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  - btrussell (profile), 10 Nov 2011 @ 10:46am
    
    Re: Re: Color trademarks
    Your avatar is infringing!
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Anonymous Coward, 10 Nov 2011 @ 8:50am

TESS Search
In the USPTO's TESS Trademark Search, you probably want to look at 77828736. Inside is Design Search Code 29.02.05 Violet or purple.

I think they should use the phrase "knitting needles joined by one purple cable".
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- Your Friendly Neighborhood Librarian, 22 Nov 2011 @ 4:47pm
  
  Re: TESS Search
  "The color(s) purple is/are claimed as a feature of the mark. The mark consists of the color purple as applied to the flexible needle cable"
  
  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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Fushta (profile), 10 Nov 2011 @ 8:50am

Crayola is boned, along with the Grape Ape and the original Hulk.
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- Anonymous Coward, 10 Nov 2011 @ 9:15am
  
  Re:
  And Donatello.
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- Blatant Coward (profile), 10 Nov 2011 @ 9:54am
  
  Re:
  Since it's on the Internet, it won't affect Prince. The Internet is over in his world.
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- MrWilson, 10 Nov 2011 @ 10:54am
  
  Re:
  The original Hulk was very briefly gray and then green.
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  - JMT (profile), 10 Nov 2011 @ 12:36pm
    
    Re: Re:
    With purple pants.
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DannyB (profile), 10 Nov 2011 @ 9:05am

Freetards should stop complaining
At least they didn't copyright or patent that color.

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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ChrisB (profile), 10 Nov 2011 @ 9:14am

3M got there first
Sorry Crafts Americana, 3M got there first:
http://boingboing.net/2010/10/25/3m-claims-ownership.html
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Anonymous Coward, 10 Nov 2011 @ 9:21am

No problem in Canada.... nothing about the COLOUR Purple.
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Ima Fish (profile), 10 Nov 2011 @ 9:21am

I think the artist formerly and currently known as Prince would have something to say about this.
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Anonymous Coward, 10 Nov 2011 @ 9:23am

I thought the color purple was a movie.
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- John Doe, 10 Nov 2011 @ 9:28am
  
  Re:
  I hope their trademark predates the movie or they might be in trouble. :)
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  - darryl, 10 Nov 2011 @ 2:08pm
    
    Re: Re:
    Mr DOE..
    
    Isn't the coloUr of your little icon next to your name Purple ?
    
    Or is it puce ?
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    - Anonymous Coward, 10 Nov 2011 @ 2:10pm
      
      Re: Re: Re:
      is it John doe or
      
      John D'oh!
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out_of_the_blue, 10 Nov 2011 @ 9:32am

AS USUAL, YOU"RE JUST GUESSING, MIKE.
"While a quick search didn't turn up the relevant trademark (I didn't look very hard), I'm guessing..."

"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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- Another AC, 10 Nov 2011 @ 9:58am
  
  Re: AS USUAL, YOU"RE JUST GUESSING, MIKE.
  OK, take your meds and read the article again. It doesn't say what you think it says :)
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- technomage (profile), 10 Nov 2011 @ 12:37pm
  
  Re: AS USUAL, YOU"RE JUST GUESSING, MIKE.
  I'll trademark the word and color blue inside the "blog/forum/website/newpaper/etc." comment market! OOTB, consider yourself in violation ;)
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Steve Collins, 10 Nov 2011 @ 9:38am

It's not a "Registered" trademark
My pink shorts, after washing them with my red t-shirt, can be my trademarked color. The difference is I cannot have a registered trademark on it (R in a circle).

There is no scrutiny on a trademark (tm), but there certainly is on a registered trademark (R).
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Anonymous Coward, 10 Nov 2011 @ 9:39am

I thought you could only trademark the name of a color? That's why car makers have really weird names for the color of the cars.
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- Anonymous Coward, 10 Nov 2011 @ 10:03am
  
  Re:
  nope
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Anonymous Coward, 10 Nov 2011 @ 9:45am

What is "a full trademark?"

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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- jackn, 11 Nov 2011 @ 9:17am
  
  Re:
  Bingo!
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fb39ca4 (profile), 10 Nov 2011 @ 9:46am

I trademark 00D5FF!
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Anonymous Coward, 10 Nov 2011 @ 9:48am

Also, how does their statement "imply" that they can stop people from using their claimed trademark outside their market?

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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RandomJay, 10 Nov 2011 @ 9:48am

I don't see the problem
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.
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- Anonymous Coward, 10 Nov 2011 @ 4:32pm
  
  Re: I don't see the problem
  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.
  
  "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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  - Anonymous Coward, 10 Nov 2011 @ 4:32pm
    
    Re: Re: I don't see the problem
    Sorry about the tagging problem.
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Jeffrey Nonken (profile), 10 Nov 2011 @ 10:07am

I've just trademarked the color 216-190-216�. Steam, I'm looking at you! I expect to be rich before the end of the year. See ya, suckers!
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NattyFido (profile), 10 Nov 2011 @ 10:33am

Only in the States...
because the rest of the English speaking world would write 'COLOUR purple'!
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ChairmanH, 10 Nov 2011 @ 10:41am

Trademark notice and "full trademark"?
Has anyone ever seen a trademark notice that provided a relevant product/market limitation on the rights claimed? It's completely ridiculous to bad-mouth a company for not providing such a limitation. No one does that.

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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- Anonymous Coward, 10 Nov 2011 @ 10:53am
  
  Re: Trademark notice and "full trademark"?
  word
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Liz (profile), 10 Nov 2011 @ 12:47pm

I see a general misconception that trademark = copyright or patent. And that anyone who uses it must pay a fee to whomever holds that bit if IP.

Folks, this is not how trademarks work.
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Anonymous Coward, 10 Nov 2011 @ 6:41pm

"After a 10-year battle, Cadbury now owns the color purple in Australia.
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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Purple Nail Designs, 7 Oct 2014 @ 10:05am

Ha, amazing!
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