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Summary:

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.

Blue HTC One
photo: HTC

As Apple prepares to release a new iPhone on Tuesday, the tech press is buzzing about the gadget’s new hues (rumors include champagne) 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 Louboutin shoeswhich 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.

  1. They could call it “sham pain.”

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  2. This probably will be important litigation that the companies pile a ton of money into. That’s because of the huge potential profits from people that concerned about the color of their phone. After all, a fool and his money . . . .

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    1. Valentine North Tuesday, September 10, 2013

      So, they change the color slightly. In a lab they can prove it’s not the same color, and a lot of artists with trained eyesight could spot the difference, but the average person won’t.

      I’m curious how far they’ll go. Consider the colors royalty from different countries use, and all those brands of luxury items that us the very same colors. And what about the flag colors?

      Cheap entertainment for the viewers, expensive for the customers and damn profitable for the lawyers.

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  3. Amazing! Apple claimed to have invented rectangles and rounded corners and now colors? Are they pretending to be God?

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  4. There should not be any patent for the colors please. I like the blue color a lot! :-)

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  5. Christian Puricelli Wednesday, September 11, 2013

    Champagne is a trademark of the name not a color. If Apple wants to call their color “champagne” they migh be sued because of that. On the other hand it’s correct what you said about the color trademarks, that have a more limited scope.

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    1. “Champagne” is a trademark for bubbly wine. Anyone can use the word for anything unrelated to wine.

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