Legality of building a brand based on color association?


6

I'd like to create a brand, naturally, but I have a problem.

You see, there are only so many colors in the world and the number of colors has not changed much since the 1980s, when software companies have surfaced. (It seems to me that Google's colors were taken from Microsoft, until one realizes that colors can't be trademarked in and of themselves.)

Seriously though, how do I choose logo colors that won't get me sued by say, Microsoft, or Google? I can't invent a new color.

Legal Branding

asked Nov 18 '10 at 05:53
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Moshe
409 points

5 Answers


4

Franky B's answer is right: you will not lose a lawsuit solely for using a color or color scheme. As a rule of thumb, make sure your brand cannot be confused with another one. For more detailed information, this article on color trademarks sums it up very well.

Edit: To answer Tim, I believe that the key here is brand confusion. Judgment is really what matters. For example, it's OK to use the same color scheme as a company from a different industry but don't copy a color scheme from a competitor especially if you think it could cause confusion. Example of color schemes which don't cause confusion:

answered Nov 19 '10 at 02:58
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Olivier Lalonde
2,753 points
  • @Tim: thanks, edited. – Olivier Lalonde 9 years ago
  • I don't think that is quite true... "The United States Supreme Court has held that a color can be registered as a trademark upon presentation of evidence showing that the color has become associated with a particular product and identified a particular source for that product. Circuit Courts of Appeal that had previously considered this issue had issued conflicting rulings on whether colors alone could be registered as trademarks." - It is harder to win a suit using color only, but the Supreme Court says it is legit. – Tim J 9 years ago
  • @thanks oliver. I think we are talking a difference of booksmart and streetsmart. There is an element of common sense that is missing in this argument. The example above is great, and you hammered it perfectly. If you could simply trademark colors, then there would be no logos left. – Frank 9 years ago
  • @Franky, you still don't get it. YOU CAN trademark colors. There are colors that are trademarked. And for the record I agree with you Olivier. – Tim J 9 years ago
  • You can also buy a star, but its a pointless thing to do. It should not even be a consideration when designing a logo. Its very different from a trademarked font or identity. If the legal ramnifications were serious, bastards like myself would register every possible color code and just file law suits looking for settlements. No real attorney would file a case on something like this (none on a contingent basis), and if a person has a lawyer on staff or the pockets to follow through with a suit they will learn its not worth it. So its not a threat. Does not Apply in the real world!!! – Frank 9 years ago

2

Despite the previous discussion, I think you don't have anything to worry about. Just don't pick a color scheme that is identical to your competitors. Typically, in trademark disputes, you'll have to ask - could your product reasonably be confused with the competitors?

Thus, if you were starting a search engine, and you used all Googles colors and similar layout, then you might be treading on unsafe ground. On the other hand, you are almost always safe if you use standard colors, since those can't be easily trademarked. Note in the Supreme Court article mentioned, that colors which are "functional" are not subject to trademark.

In any case, just pick colors independent of your competitors, and you should be just fine.

answered Nov 19 '10 at 01:39
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Charlie B
151 points
  • I agree - the practical aspect is that as long as one is reasonable and careful about it one should be safe. – Tim J 9 years ago

1

"how do I choose logo colors that won't get me sued by say, Microsoft, or Google?"

Look at their color schemes and avoid them. However, Google and MS may be the wrong competitors to look for. Will you really be a thorn in their side anytime soon? Find your immediate competitors instead.

The counterpart to "there are only so many colors in the world" is that "only so many" is literally millions of colors. So, it shouldn't be hard to end up with a pleasing logo that doesn't seem like your are copying your competitors.

answered Nov 19 '10 at 06:56
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Alphadogg
1,383 points

0

You will never get sued for use of colors, because they cannot be copywritten or trademarked. If you create your own color or name for a color then you can trademark it. You could create a black, same as any other black, but call it MOSHE black. If you had a crayon in MOSHE BLACK and someone else decided to sell MOSHE BLACK crayons you would have a lawsuit.

What you need to be careful of is stealing someone else's logo, or identity. This sometimes comes in the form of a font. Some comapnies have their own font. CocaCola comes to mind.

answered Nov 18 '10 at 06:15
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Frank
2,079 points
  • Absolutely wrong. All you have to do is google for suit and colors. For example - http://www.colormatters.com/color_trademark.html, http://www.nytimes.com/2006/11/12/us/12artist.html?hp&ex=1163307600&en=081e787e5b955b23&ei=5094&partner=homepage, http://www.timesnews.net/article.php?id=9021230. Also, one can sue or be sued for anything. – Tim J 9 years ago
  • Tim is right, Franky B is wrong. See, e.g., http://library.findlaw.com/1995/Jan/1/128072.html (article re U.S. Supreme Court decision) and http://en.wikipedia.org/wiki/Tiffany_Blue (Wikipedia re Tiffany blue). – Dana Shultz 9 years ago
  • The color alone will never get you sued. Using the color in a combination or pattern changes things. Simply put, someone cannot simply copyright or trademark a color scheme, and even if they succeeded in doing they would not be successful in fling a SUCCESSFUL lawsuit. If that were the case Adidas would be sueing everyone with stripes, apple would be suing anyone with a silver keyboard, it just does not apply. – Frank 9 years ago
  • Franky, did you actually read the links that Dana provided? You can't get much higher in the US than the supreme court... – Tim J 9 years ago
  • There is booksmart, and then there is streetsmart. The bottom line is that nobody is going to sue you for a color scheme. Big corporations do not sue you unless if you are really pissing them off. Say i create a site and call it FRANKYB.org using the same google font, and google color scheme. The chances of me winning the lottery are a lot stronger than me actually getting sued and having to pay up. The worst that can happen is that I would be asked to change it, highly unlikely also. If you spend your whole time worrying about getting sued, you might as well never go into business!!! – Frank 9 years ago
  • You can sue anyone for anything, which is reason enough to be careful. As for winning the case, it usually requires the two parties to be competitors with the same offering, such that there is a case for confusion in the buyer of the source of the product/service. – Alphadogg 9 years ago

0

I couldn't fit all the counter examples to Franky B's assertion that "nobody is going to sue you", so here are a bunch of refutations. Note that many of the companies I have NEVER heard of.

http://www.amarketplaceofideas.com/scotts-miracle-gro-sues-terracycle-over-color-scheme-of-label-and-claims-of-organic-superiority.htm http://www.timesnews.net/article.php?id=9021230 http://exclaim.ca/News/eddie_van_halen_sues_nike_over_shoes_colour_scheme/ http://colormatters.blogspot.com/2009/07/color-infringement-microsoft-vs-google.html http://www.alabar.org/sections/intellectualproperty/pdf/BruceSiegal-TrendsinTMProtection.pdf http://fastfood.ocregister.com/2009/08/05/in-n-out-settles-copycat-lawsuit/30195/ It goes on and on - that was only 2 minutes of searching and pasting.

All it takes is someone to take an interest in a color scheme that you have used.

In summary, Dana's link to the Supreme Court decision is the precedent that will be used and referred to.

answered Nov 19 '10 at 01:38
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Tim J
8,346 points
  • It usually requires the two parties to be competitors with the same offering. – Alphadogg 9 years ago
  • I understand that - it is meant to stop companies from confusing the public. And I never stated otherwise. The problem I am trying to point out is that the blanket statements about "never being sued" or you "can't TM a color" are so obviously false that I can't believe they are still posted. The "common sense" and "practical" argument I agree with - but the absolute assertions are absolutely wrong. – Tim J 9 years ago

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