This weekend my wife asked me to pick up some Excedrin when I went to the store. As I was putting the package in my cart, I realized that the package I picked up didn’t actually say Excedrin on it. It had the exact same color scheme and layout, but a different name. That’s when I realized that generics have taken the whole copycat thing to another level.
But is that legal? When is a package design too similar to its targeted name brand competitor that it crosses over into trademark infringement? Is a different name legally different enough, even when they use the exact same color scheme?
Sometimes it seems so. After all, Ambrit lost when they tried to keep Kraft from using a similar color scheme on their ice cream packaging (the court decided blue was a ‘cold’ color that was used by ‘a multitude’ of ice cream producers and therefore Ambrit’s use was more functional than branding), and Lifesavers lost their bid to protect their rainbow-colored packaging, yet DAP won when another company tried to sell their tile mastic in a red bucket. Go figure.
We all know that colors can be part of a brand,
and for the most part they can be trademarked when it comes to specific products. We all recognize that Tiffany owns the turquoise jewelry box, and T-Mobile has built their cell phone branding on magenta, while Owens Corning has TM’d pink insulation products. And shoe fashionistas have likely heard how Christian Louboutin stopped Yves Saint Laurent from making red-soled high-heel shoes.
But a product color isn’t a guarantee.
Cadbury had pretty much “owned” the color purple for their chocolate products from 1920 up until recently when UK courts ruled in favor of Nestlé. And while some companies’ products may look like they are part of the brand, the only green that John Deere can truly claim as theirs is in their logo.
So what is the rationale for deciding when colors are such an integral part of your brand that they can be trademarked? According to Jill Morton, Color Psychologist and Branding Expert, there are multiple considerations. While international agreements and the courts understand the importance of color as it applies to branding and product sales, they also realize that there are only so many colors to go around. If a color could be trademarked for every product, the best options could be depleted quickly, which is why each case has to pass a functionality test to determine the outcome — all of which seem to be open to interpretation by the judge.
Long story short, color ownership for a brand is iffy.
If you have a long history of using using a very specific brand color you may have a case.
If not, just TM the logo, not the colors.