Column:

'Orange' you glad you can trademark the rainbow?

By Kim Adams, Columnist

Published Feb. 25, 2005

Money tends to make people do stupid things. And when profits are on the line, money tends to make companies do extremely stupid things.

Orange, a British mobile phone company, is suing easyMobile, another British phone company, for the trademark rights to the color orange. Yes, that's right — they want to trademark the color orange.

Orange claims easyMobile has been using orange — a color to which it seems to believe it has exclusive rights — with the intention of misleading customers into believing that easyMobile is the same company as Orange. Although Orange might have made the clever marketing decision to use its namesake color in advertisements, I really don't believe this should entitle it to the exclusive rights to the use of the color orange.

Unfortunately, British law does not seem to share my enthusiasm for common sense. British trademark law seems to lack a, "no, you can't trademark any of the colors that come in an eight-pack of crayons," clause, which is a grave oversight of Parliament, if you ask me.

Under actual British trademark law, it turns out that if Orange can prove it has built a reputation on the color orange and that easyMobile's use of the color is intended to confuse customers, it might have a chance of winning its lawsuit.

The first legal hurdle — proving a reputation — might not be hard to do, as the company does share a name with the color. However, the second one is much more subjective.

In its defense, easyMobile said, "It is our right to use our own corporate color for which we have become famous during the last 10 years. Not only will we not be ''''''''&sup1"&Aring"Â"passing off' as them, but we also want everyone to know that they are our enemy."

Much to my horror, cases like the one Orange is presenting have succeeded in the past.

The United Postal Service (or UPS, as most of us know it) actually owns the trademark on the shade of brown used for its uniforms and trucks. Of course, as it turns out, no one else actually wants to use that shade of brown.

Despite the legal precedent, the idea of trademarking a color is absurd. Although Orange might want to use the color for its logos and products, I see no reason why it should be able to limit other companies from using the same color. After all, we're working with a limited spectrum here. If cases like this succeed, how much longer will it be until most colors are trademarked?

Furthermore, if Orange's business model is so shaky that it is going to be profoundly disturbed by another mobile phone company using the same color, I think it might want to re-evaluate some more substantial aspects of its business. Most consumers are probably not making cell phone purchases based on the color a company uses for its logo.

I hope the British courts will also find this case to be ridiculous. But should Orange triumph, I think it should be held to defending its trademarked color in all markets. I'll be waiting for Orange's suits against Cingular Wireless, the orange cell phone provider in the United States, as well as orange growers, the makers of orange reflective vests, traffic cones and pumpkin patch owners.