Can Smartphone Makers Own Colors?

In this economy it has become apparent that anyone with determination, financial resources and a good lawyer or two can attempt to own anything they want.

UPS owns brown. John Deere owns yellow and green. And Christian Louboutin, most famously, owns red. At least on the soles of the shoes he makes. Which illustrates the tricky aspect of what ownership means: you can own a certain application of a color in a certain context, or you can own a color shade for commercial purposes, or you can own a descriptive name within specific parameters except when someone else has an equally significant claim.

So, this business of the word gold. Or champagne. Or magenta. Or bordeaux, comes to the fore. Inconveniently for Apple, ATT and other tech mega-companies, there are these pesky issues of prior use.

The techies can be forgiven for failing to remember that there are other commercial enterprises on planet earth who happen to have their own business interests to protect. They may well be smaller, less noble in purpose and relatively insignificant compared to the smartphone, but they make a living for some and provide products and services for which there is a market. And they, too, have lawyers. They are also, not infrequently, domiciled in countries who take seriously the protection of their economic interests.

Champagne, bordeaux and magenta may all be unspeakably luxurious sounding and for someone paying upwards of $600 or more for a phone, could capture the spirit of the exclusivity appropriate to both the cost and the purpose of the device in question. But they also happen to be places which produce products of which they are justifiably proud and on which not a few people depend for the livelihood. So, they could give a hoot what Apple wants, or anyone else for that matter. And dont get us started on gold.

The larger point is that the obsession with ownership via patent, copyright and trademark has reached levels of absurdity which the merely sensible in the judiciary are beginning to find offensive. Esteemed jurists are increasingly raising questions about the presumption on which these self-aggrandizing attempts at acquisition are based. Should the industry not begin to evince some measure of self-restraint in these matters they are in danger of having it imposed. Because increasingly, those in a position to decide these issues, are, ahem, seeing red. JL

Jeff Roberts reports in GigaOm:

Smartphone makers like Apple want to stand out with distinctive colors — but trademark laws are leading to lawsuit threats by companies that say they own exclusive rights in certain shades.
The tech press is buzzing about the iPhone’s new hues and, more generally, how skillfully Apple uses colors to keep in front of competition.
Now, however, come reports that French vintners may sue Apple if it goes forward with the “champagne” monicker. And, meanwhile, a color conflict has broken out in another part of the industry as T-Mobile is suing AT&T for using magenta in its marketing materials.
So what gives? Can companies really claim part of the color swatch all for themselves? If so, HTC may feel nervous about its exclusive line of Best Buy phones in blue — a color trademarked long ago by Tiffany jewelers.
The answer is, yes, companies really can claim colors. Other examples include UPS, which has trademarked brown, and John Deere which owns rights in its green and yellow scheme. And Christian Louboutin recently got an appeals court to uphold its exclusive right in its red soles, which are found on the feet of celebrities like Sarah Jessica Parker (the Grusandas at right can be yours for $995).
There is, of course, a huge catch here: while companies can trademark colors, they can only use the marks to claim a teeny-tiny part of an industry — not all of it. According to Sarah Burstein, an intellectual property professor at the University of Oklahoma, companies can obtain rights in a color if they can show a secondary meaning, but that it will hard for them to show the color of someone else’s product is causing confusion – which a firm must do to prevail in a trademark infringement claim.

“If I made a red phone and called it “bordeaux,” who would be confused [and think it came from Bordeaux]?” said Burstein by phone. She added that the French Champagne vintners have been “very active in educating Americans” about the grape varietal, but they would likely be unable to stop Apple from saying its phone is “champagne” colored.

As for the T-Mobile magenta lawsuit, that is a different story. The carrier, which has been claiming magenta for a while, has a stronger case because AT&T created a subsidiary to compete with the same product in the same market, using the same colors for its marketing scheme.