Colour Blind

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They say blue and green should never be seen. But, as Richard Brass discovers, in the world of IP you might as well add orange, purple and a whole lot more than that to the list.

You might think telecoms companies would have more important things on their minds. Wave after wave of rapid technological change should keep them busy, by finding new ways to make phone masts look like something else, or perhaps working out how to stop your mobile phone making your toaster pop up.

But for some of the world’s telecoms giants there’s a much more pressing issue, and that’s colour. They might make their living in the world of invisible frequencies, but they are concerned enough about the visible spectrum to send in the lawyers.

Take the German telecoms company T-Mobile, part of the Deutsche Telekom group. It has registered the colour magenta as a trademark when it is used in any telecommunications context. That clearly means anything to do with phones, whether mobile or static, and there’s a decent chance that it could even be taken to cover the Internet. So any attempt to dress up your Facebook page with a lurid shade of hot pink could land you with a ‘cease and-desist’ letter from Bonn.

T-Mobile is not alone. Mobile phone company Orange has also laid claim to a colour, and there are no prizes for guessing which. Orange’s marketing may paint a picture of an easy-going, chilled out organisation, but you mess with its colour at your peril.

When the annoyingly ubiquitous easyGroup ventured into the mobile phone market a couple of years ago, using its standard orange as its livery, Orange pounced. The new company’s use of the colour would confuse customers and was in breach of its trademark, Orange argued, so stop. easyMobile tried to tough it out, but faced with a company that felt its very identity was at risk, the interloper backed down.

Any attempt to dress up your Facebook page with a lurid shade of hot pink could land you with a ‘cease and-desist’ letter from Bonn.

Phone companies clearly have an obsession with colour that could provide rich material for a corporate psychologist, but they’re not the only ones. In a world saturated by images, where instant recognition is priceless and where a brand identity is likely to be far more enduring than the structure behind it, colour is becoming a battleground.

The office equipment group 3M, maker of a well-known blue masking tape in the US, successfully took a rival to court for producing a tape in a similar shade. Insulation company Owens Corning managed to establish its rights over the colour used in pink fibreglass insulation for homes. And BP prevented an Irish petrol company from dressing its forecourts in a similar green to BP’s own, national colour or not.

HJ Heinz has laid claim to a particular shade of turquoise on baked-bean cans, Cadbury has asserted its rights over purple on chocolate wrappings, and any attempt to package your beautiful hand-crafted jewellery in a certain shade of pale blue will scupper your chances of ever being invited to breakfast at Tiffany’s.

But it’s far from one-way traffic. In the US, colours were only accepted as trademarks in a Supreme Court ruling as recently as 1995, leaving plenty of room for argument and change. And earlier this year, New Zealand’s commissioner of trademarks decided the public did not generally regard a colour as a trademark, spoiling the day for the country’s largest company and owner of its Yellow Pages directories, namely Telecom. Definitely another one for the psychologists to look into as a rich research topic.

There’s no saying where the trend might go, but the future, we’re all assured, is green, and the fight to get hold of the colour that means sustainable, caring and wholesome identities along with trademarks could well be the nastiest of all to debate.

It proved that way in Australia in June, when BP tried to repeat its Irish success by having its shade of green registered as a trademark, as it has in more than 20 countries around the world. The dispute went to the country’s highest court, where it was ultimately turned down. That small setback shouldn’t deter the inner artist in us – just make sure you’ve got the phone number of a good IP lawyer handy.

This article first appeared in IP Review, issue 21

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