Can phone companies own colors? New tussles over “magenta,” and “champagne” for Apple

Blue HTC One

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.

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