The Color Purple... Trademarked Again
from the didn't-we-just-do-this? dept
Wait, didn't we just have a story about some knitting needle company trademarking the color purple? Indeed, we did, but apparently others are doing the same thing as well. Over in the UK, there was actually a legal battle going on over this, with Cadbury trying to trademark the color purple, and competitor Nestle trying to oppose the efforts. However, the UK Intellectual Property Office apparently has no problem with trademarking colors and gave Cadbury the official trademark.Nestle argued that a colour cannot be trademarked because colours are widely used in trade and purple was commonly in use by other companies when Cadbury applied for the trademark.The reasoning behind all of this is a little bizarre. Just think for a second, if you were unfamiliar with the details of trademark law and realized that there was a legal dispute over who owned the color purple. How do you read the following two sentences and not wonder why anyone would ever be bothering about the ridiculous idea of trying to own a color.
The registrar came down in favour of Cadbury, citing the results of research showing that consumers strongly associated the colour purple with Dairy Milk, which was the best-selling chocolate bar in the U.K. at the time of the application in 2004.
The registrar came down in favour of Cadbury, citing the results of research showing that consumers strongly associated the colour purple with Dairy Milk, which was the best-selling chocolate bar in the U.K. at the time of the application in 2004.It just feels like absolutely everyone involved in that dispute could have been doing some kind of work that actually mattered, rather than arguing over this.
Nestle scored some concessions. The registrar ruled that Cadbury had not shown that its use of the colour purple in relation to chocolate assortments was strong enough to be included.
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Filed Under: color, purple, trademark
Companies: cadbury, nestle
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Paradox. Contradiction. Which is it? Fine, I'll do us all a favour and just have my own brain explode from all this. It'll put me out of my misery.
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When I see purple, I don't think "chocolate", I think "science ninja".
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Re:
Prior art fail.
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Re: Re:
There is also natural phenomena that take on the color purple. (Frogs, Eggplants, Grass, etc)
http://en.wikipedia.org/wiki/Purple
In fact, purple was widely used in historical times for royalty:
http://pffc-online.com/mag/paper_history_shellfish_royalty/
http://blog.aurorahistorybout ique.com/origins-of-the-royal-color-purple/
Cadbury fails in first use and association.
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And people wonder why society is starting to look at IP protectionism as joke, rather than as a solution to anything.
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Re: Re: Re: Re: Re:
Read Qualitex v. Jacobson Products and you will learn how wrong you are.
In any event, any mention of "prior art" in trademark law is misplaced. Prior art deals with patent law, not trademark law. If you're going to spread FUD, at least get your terms straight.
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Re: Re: Re: Re: Re: Re:
If you read whom I was originally posting for, it was the remark about prior art.
I am not a lawyer, nor do I have a wish to be. I do not distinguish between patent, copyright, and trademark when I am merely replying to someone who claimed that the Teenage Mutant Ninja Turtles came after Cadbury as part of an argument about something, and fail to understand that something was in use way before that.
If you want to go argue where prior art fits into laws, go argue with someone who is talking about laws and where they fit into what, not someone who is merely giving more examples of the original posters "prior art".
So take your FUD and stick it up your....
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As for trademark laws, please tell me where exactly I use trademark laws in my argument. The closest I come is generally stating that issues like this makes people like me start questioning the entire IP environment: Copyright, Patent, and Trademark.
If you want to discuss if prior art and trademark should even be in the same category, feel free to go discuss with the one who originally put them there.
Just think of me as that ignorant public that is just expanding on others ideas, when I know something about their original ideas, but may not have a clue if their idea was properly placed or not. That is why I specifically do not comment on the law itself other then to share my views on how me, as the public, feels in regards to them. After all, it is my understanding that laws are put in place to protect the general public, correct?
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Re: Willton
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Re: Re: Willton
That's not a fact; that's your opinion, and it's wrong. Trademarking a color in connection with certain goods or services does not bar anyone else from using the same color as a mark in connection with different goods or services. All it does is prevent others from directly competing with the trademark owner by using the trademarked color on their competing products.
Let's also ignore the fact that it is a very common color in addition to that. A simple Google image search for "logos with purple" returns hundreds of unique results if not more. It would be stupid to allow one company to have exclusive rights to use a particular color.
It certainly would, which is why it does not happen. Companies that are able to trademark a single color (which is very difficult and requires a substantial showing of secondary meaning) only have exclusive rights to that color in a particular field. Just because Owens Corning has a registered trademark on the color pink in connection with its insulation products does not mean that Baskin Robins cannot use pink in connection with selling ice cream. Trademark rights are narrow in that respect. You are blowing this way out of proportion.
Some of you need to educate yourselves in this arena and read Justice Breyer's unanimous SCOTUS opinion in Qualitex v. Jacobson Products.
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Re: Re: Re: Willton
At the very least the trademark should have been restricted to that particular blend of the colour purple to prevent over reaching or vague comparisons causing future issues. (Consider that there are only six basic colours: if each company trademarks one of them, how long before there are only six providers left allowed to provide packaging. Further, since chocolate is a food product that means that only these six companies will be allowed to package any food. It sounds crazy but so do the majority of the law suits currently out there. If current trends continue I give it less than fifty years before this ridiculous seeming possibility becomes reality.)
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Re: Re: Re: Re: Willton
Then punish the bad actors; don't punish everyone. Just because some companies try to overreach with their trademark rights does not mean that their rights are not legitimate in their specific fields.
As for good intentions and lawyers, something tells me that you do not know very many lawyers. Spare me your prejudice against those in the legal profession and stay on topic.
At the very least the trademark should have been restricted to that particular blend of the colour purple to prevent over reaching or vague comparisons causing future issues.
Um, that is the status quo. Why do you think it's not?
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Re: Re: Willton
No, it doesn't.
You might want to check your "facts."
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Re: Re: Re: Willton
The fact isn't about how the law is written, but about the fact of the way it is interpreted and acted on.
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http://milka.com/
Kraft, start your legal engines.
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Apparently there is such a thing as color trademark though or at least there's a wiki entry on it. Further proof that ip lawyers have been mucking up the system for a long time.
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i AM gonna be the youtube ghost... just might use stuff besides youtube:P
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Normally I would agree with you but..
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Re: Normally I would agree with you but..
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Appropriation?
I grew up in communist country where they confiscated private property and gave it to 'the people' (read 'communists and their minions') and now I have to watch how so called intellectual property is used to rob us from right to use common shared things like colors (trademark) or ideas (obvious or general patents).
I understand that people can protect something they've created - brand (trademark) or invention based on expensive research (patents) - but how can anyone dare to claim ownership over something like color? They cannot say that they created the color... they are just taking something that was already here for everybody to use, public good... and stealing it from us... maybe legally but certainly not rightfully.
That's what I call chutzpah.
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Re: Appropriation?
You clearly don't understand the nature of this dispute. Cadbury is not seeking to own all uses of the color purple. It is merely trying to protect its interest in using the color purple in connection with its goods (i.e., candy and chocolate foodstuffs). You are free to use the color purple on your clothes or artwork without hearing a peep, marshmallow or otherwise, from Cadbury.
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Re: Re: Appropriation?
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Slippery slope fallacy: just because it happened in one instance does not mean it going to lead to all colors being proprietary. Your fears are entirely exaggerated, as you're extrapolating a few cases to absurd conclusions.
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However this level of saturation isn't likely to happen in our lifetimes so there's no need for us to care, right?
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Re: Re: Re: Re: Re: Appropriation?
However this level of saturation isn't likely to happen in our lifetimes so there's no need for us to care, right?
This level of saturation is not likely to happen at all. Again, you are extrapolating a few cases to their absurd conclusions. Just because this may encourage certain entities to apply for trademark registrations on colors does not mean that they will get them. As has been said before, getting a registration on a single color requires at least a significant showing that customers in the field associate the color with the source of the goods. That is very difficult to prove and requires a lot of work creating the necessary good will to do. Most companies would rather avoid that headache and get the automatic distinction of an arbitrary logo.
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Re: Re: Appropriation?
The fact that Cadbury is 'trying to protect its interest' is not sufficient justification at all... because so does the robber. The fact they want to protect their interest does not mean they have any right to do so.
Do you think anyone should be able to claim ownership over any public good they did not create and exclude others from using it just because they want to? Can you imagine how would society like that work?
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Re: Re: Re: Appropriation?
It's based on the law of unfair competition. If Cadbury has been using the color purple on its candy bars sufficiently that consumers now associate the color purple on candy with Cadbury, then it would be unfair for a second-comer to ride on the coattails of Cadbury's success by using the color purple on their competing candy bars. As you folks like to say, "a moron in a hurry" at the impulse counter looking for Cadbury candy, knowing that Cadbury regularly wraps its candy in purple wrappers, may take the first candybar he/she sees with a purple wrapper. If that candy bar was made by anyone other than Cadbury, the customer loses value in his/her purchase and Cadbury loses a sale. That's unfair competition.
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Re: Re: Re: Appropriation?
Neither is the word "Apple" created by the company Apple. Does that mean I should be able to sell my own "Apple" computers?
Whether they created the color is immaterial. Others should not be able to use the color in a manner likely to cause consumer confusion (i.e., by selling chocolate bars in the same color wrapping when consumers associate that color wrapping exclusively with Cadbury).
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The fact that Apple seems to go after any company that just uses any apple is a different thing and I consider it disgusting legal bullying based on power of money, not power of justice and law.
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Re: Re: Re: Re: Re: Appropriation?
My point is that "creation" of the mark is irrelevant to protection. Most trademarks consist of preexisting words (or colors, or images, etc.).
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Re: Re: Re: Re: Re: Re: Appropriation?
Not only that, trademarks can be abandoned by one party and then picked up by another. Trademark rights are acquired through use, not through creation. If you create a mark but never use it, then you never had rights to the mark in the first place. Further, if you use a mark but then cease use, you lose it, and second-comers can then pick up the mark for their own business.
There is no "public domain" when it comes to trademarks. Businesses can adopt old, abandoned marks from other businesses and gain exclusive rights thereto. All that's required is that the mark be distinctive and identify the source of the goods or services upon which it is used.
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Re: Re: Re: Re: Re: Re: Re: Appropriation?
It's frustrating not only that so many of the negative comments here seem to be based, in part, on a misunderstanding of what's going on here, but that Mike insists on using language in his article that perpetuates such misunderstanding (despite the fact that he knows better, e.g., that a trademark doesn't amount to "owning" the color purple).
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Re: Re: Appropriation?
Lazy candy-making freetards.
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The color purple
http://www.colorpurple.com/
Actually the movie, not the play.
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Story Time
The woman shot her husband a slightly alarmed look.
“I don't understand. I just want to see my baby. What is all this about licensing and registration? You make her sound like a bag of groceries.”
“Not at all,” replied the lawyer. “As you know, companies own the rights to several patents, trademarks, and copyrights. Since you chose to infringe upon these, you must license your daughter with the appropriate companies. Otherwise, your daughter will be infringing, and we will have to hand her over so they may recoup their costs.”
Horror crept over the husbands face. “That is absurd!”
“However,” said Herbert, a slightly annoyed look creeping over his face, “The law is the law, and we must follow it.”
Herbert reviewed the chart the doctor handed to him and proceeded to take out a few selected papers from his briefcase.
“Now this company owns the XX chromosome pair. Please sign here.”
He handed the papers over to the couple, and the husband hesitantly took it and, after reviewing it, signed.
“It appears that your daughter was born with blond hair and green eyes. This company currently holds the trademark on ‘Blond’, and this company owns the trademark on ‘green’. Please sign here and here.”
After signing, Herbert continued reviewing the characteristics and picking out the appropriate licensing contracts.
After reviewing papers for the next two hours, it appeared everything was done.
“So, it appears we have licensing in place for almost everything. What will you name her?”
The husband and wife looked at each other. “Ashley,” the husband replied.
“Very good,” said the lawyer. “That is a good name, and we have good licensing terms with that company. Here is the company who owns the trademark for that.”
After all was completed, and their new daughter, Ashley, was fully licensed and registered, the nurse handed the baby to the mother.
“The total licensing fees come to $1,357,482. How would you like to pay for that?”
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A better judge...
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Cadbury is not alone
Naturally, the commentariat at Techdirt shows its ignorance.
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Re: Cadbury is not alone
The problem is not an isolated incident, that is why it is a problem.
Just because something has been done doesn't mean that it is not stupid, it just means others have made stupid decisions in the past.
See, that is the core problem, not that companies do not deserve protection, but that their protection mechanisms will at some point get abused, as we have seen over and over and over...Ad infinitum, at which point it is no longer a benefit for society, but instead a hindrance.
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Re: Re: Cadbury is not alone
Your cynicism betrays your ignorance of the law. Trademarks only have enforceability in connection with certain goods and services. Last I checked, Kellog's did not sell goods or services associated with ancient Mayan history.
The problem is not an isolated incident, that is why it is a problem.
No, the problem is that you have no idea what you are talking about, and yet you think you do.
Just because something has been done doesn't mean that it is not stupid, it just means others have made stupid decisions in the past.
The only thing that's stupid in this conversation is your belief that owning a trademark in a color entitled one to exclude all actors in every industry from using the color. Perhaps if you decided to learn more about why trademark rights were given to colors in the past, you would understand when and why it is appropriate to give such rights to companies such as Cadbury, Tiffany's and Owens-Corning.
See, that is the core problem, not that companies do not deserve protection, but that their protection mechanisms will at some point get abused, as we have seen over and over and over...Ad infinitum, at which point it is no longer a benefit for society, but instead a hindrance.
You are falling down the logical fallacy of a slippery slope. You have no evidence pointing to the trademarking of colors becoming a hinderance on society, nor do you have any idea as to whether it will happen ad infinitum. If and when the trademarking of colors becomes abusive, we will deal with it then. In the meantime, your fears are unjustified.
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Re: Re: Re: Cadbury is not alone
When did I say that they had the right to?
I said that they did in fact try to sue for trademark infringement.
Maybe you should learn to distinguish facts from, whatever alternative world your on.
You should also try to go tell Kellog this, since they, not me, felt it was their right to do this.
No, the problem is that you have no idea what you are talking about, and yet you think you do.
Actually, my comment in this section was on the IP industry as a whole. I have very little understanding of trademark law, which is why I make no reference to it. I know more about patent law because my company deals with hardware manufacturing, so patents becomes a very sensitive issue.
So I have no clue that Kellog tried this? Please go read the
"facts" again, because they did indeed try this.
The only thing that's stupid in this conversation is your belief that owning a trademark in a color entitled one to exclude all actors in every industry from using the color. Perhaps if you decided to learn more about why trademark rights were given to colors in the past, you would understand when and why it is appropriate to give such rights to companies such as Cadbury, Tiffany's and Owens-Corning.
Tell that to all the other companies who have tried to abuse this right. Again, I said that IP had repeatedly been abused. Do you really need me to point you to all the cases of this? I could care less if it's trademark, patent, or copyright IP, because all have been abused over and over, so forgive me if I take anything around IP on faith that there will be no harm, no foul. Maybe you should go read up on Kellog Vs. MAI again....
You are falling down the logical fallacy of a slippery slope. You have no evidence pointing to the trademarking of colors becoming a hinderance on society, nor do you have any idea as to whether it will happen ad infinitum. If and when the trademarking of colors becomes abusive, we will deal with it then. In the meantime, your fears are unjustified.
This, sadly, is an opinion. Like assholes, we all have one, and they all stink. I fear any IP that is overgeneral. You can say my fears are unjustified, but given abuses from all IP areas, I feel that you are wrong. Guess we will have to disagree on this.
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Applications for color marks are subject to a high bar indeed precisely because color is seldom a product differentiator. But if at some point in time it becomes such in the minds of consumers, then in those limited instances all the classical hallmarks are met and a trademark directed to a color makes sense for businesses and consumers alike.
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Re:
Which consumers?
On a global scale, which of the many brands that use a certain color do you give exclusive right to? If 'everyone' in England associate purple with Cadbury, and 'everyone' in Sweden associate it with a different brand of candy, who gets the trademark? Can it be different in different countries?
A logo can be unique, even in a world with tens of millions of companies. There are only so many distinct colors (subtle shades are subject to "moron in a hurry" confusion).
Thats why I think color alone should not be trademarkable. Use it in a logo, fine. Just the color? Not good.
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Of course. Trademarks are territorial. The mark "O2" means breathable oxygen in the United States, but in Europe, it denotes a telecommunications service offered by Telefonica. Heck, there are two different Shop Rites in the United States, one on the east coast and one on the west coast, and each one has rights to the mark SHOP RITE in their respective areas.
Thats why I think color alone should not be trademarkable. Use it in a logo, fine. Just the color? Not good.
Well, you're going to have to take it up with the Supreme Court. They disagree.
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Yes. Trademarks are territorial, meaning that different parties may have rights for the same mark in different countries.
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What about the Purple Chocolate in a Quality Street
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Hey Cadbury!
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Unleash the Purple!
http://heroheroinehistory.blogspot.com/2010/10/coming-ofthe-purple-claw.html
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Hmmmmm
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TM on the color purple
Even so, suppose I have spent a lot of time building a market for my (expensive and very excellent) candies. Suppose also that people buy "looks-like" stuff (in a hurry, checking out, see that "good stuff" in the purple package, grab it).
Without a TM, sleazy opportunists would put junky stuff out at Cadbury prices, and purposely make it look like Cadbury's. Trying to prove they were being jackasses is difficult and expensive, proving they used your color is MUCH easier (and better for the consumer, since you take away the principle source of confusion).
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Re: TM on the color purple
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Re: TM on the color purple
Seriously, "insanely broad interpretations of TM laws"?
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Color me shocked.
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well
It must taste just the same as all the other cheap supermarket own-brands if its taste and quality don't drive it apart from its rivals.
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Re: well
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Re: well
It must taste just the same as all the other cheap supermarket own-brands if its taste and quality don't drive it apart from its rivals.
::head-desk::
When was the last time you were allowed to taste a candy bar and determine its quality before buying it? My guess is never.
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