46

So, today as I received an email from UPS, I read the disclaimer at the end and it said:

© 2016 United Parcel Service of America, Inc. UPS, the UPS brandmark, and the color brown are trademarks of United Parcel Service of America, Inc. All rights reserved.

What exactly does it mean that the "color brown" is a trademark of someone? Does it refer specifically to the brown in the logo's arrangement? And if so, anyone that uses that same color is subject to trademark infringement?

Andrew T.
  • 176
  • 2
  • 10
Délisson Junio
  • 613
  • 1
  • 5
  • 7

5 Answers5

48

Inks for reproduction can be mixed to create very custom colors. It is entirely possible to trademark a special "recipe" of ink which results in the same color each time.

So yes. In terms of branding -- colors, or specific color combinations, can be trademarked.

Don't confuse "trademark" with "ownership" or "copyright". Trademark merely means in that particular industry the company has staked a claim on a specific color or color combination. Trademarks are more about preventing brand confusion within the same industry. You're free to use the same colors in a completely separate industry and even in some cases in a completely separate manner within the same industry.

Freakonomics has an article about trademarking colors. It mostly alludes to fashion, but it's still a valid article.

If you want to delve more into branding and color, Color Matters has some additional information.

Scott
  • 1,664
  • 1
  • 17
  • 25
  • 4
    Trademarked colors are not secret. Also, UPS isn't claiming trademark on a particular shade of brown, they're claiming it on the color brown, period. – phoog Jan 28 '16 at 14:23
  • 21
    phoog, from trademark registration 2,901,090 (expand the "Mark Information" section): "Description of Mark: The mark consists of the color chocolate brown, which is the approximate equivalent of Pantone Matching System 462C, as applied to the entire surface of vehicles and uniforms. The mark consists of the color brown alone. The broken lines indicate the position of the mark and do not form part of the mark." – myersjustinc Jan 28 '16 at 17:09
  • @myersjustinc I imagine that anyone delivering packages in brown vehicles would hear from the UPS legal department if the vehicle was painted in Pantone 4635 or any of dozens of other shades of brown. – phoog Jan 28 '16 at 17:16
  • 2
    Sure, and IANAL, but I read this as describing "vehicles and uniforms entirely covered in a brown resembling this example brown", since they said " approximate equivalent of ". – myersjustinc Jan 28 '16 at 17:21
  • Any paint store will easily color-match a sample. Trademarking has nothing to do with secrecy — in fact, it's about publicity. – 200_success Jan 28 '16 at 18:48
  • 2
    @phoog Regardless, if that were to actually happen, it would be a matter for trademark litigation. Their trademark explicitly does not claim "the color brown, period". – recognizer Jan 28 '16 at 21:00
  • 1
    @recognizer no, you are right, it claims the color brown "as applied to the entire surface of vehicles and uniforms." But it is in fact any shade of brown that is "approximate equivalent of" a particular shade of brown, and that leaves a lot of leeway. I don't understand the significance of "it would be a matter for trademark litigation" -- all trademark enforcement is through trademark litigation. – phoog Jan 28 '16 at 21:57
  • 1
    Every trademark prevents the use of things similar enough that they appear to be the trademark (although I don't know exactly how that test is performed in law). So if (and only if) beige looks enough like UPS brown to be confused for it by purchasers of delivery services, then the trademark prevents the use of beige in that way. Same for other shades of brown, although it will depend on the details of how it's used as well as the precise shade. – Steve Jessop Jan 28 '16 at 22:15
  • 5
    Btw, I suspect the reason the description of the mark says "approximate equivalent of Pantone 462C", is that they don't necessarily get the paint they use actually certified by Pantone, or some issue along those lines, so they're not prepared to swear under penalty of perjury that it is always precisely Pantone 462C. When you describe the mark, you describe the mark as best you can. You don't have to describe "the mark or things that look a bit like it" because that's covered anyway by the relevant law. – Steve Jessop Jan 28 '16 at 22:22
  • 1
    @phoog UPS has trademarked vehicles and uniforms in Pantone 462C. This does not need to be decided in court, because it is explicit in the trademark as granted by the USPTO. Whether any color other than Pantone 462C is, in fact, the "approximate equivalent" of Pantone 462C would need to be decided in court. When you say it "leaves a lot of leeway" or is "the color brown, period", these are assumptions that are not supported by the wording of the trademark, unless you've got an explicit legal definition of "approximate". – recognizer Jan 28 '16 at 23:13
  • @recognizer by "a lot of leeway" I mean precisely that it leaves it open to interpretation and therefore to litigation. I imagine that UPS would take a very broad view of "approximate equivalent." They would probably take a competitor to court even if they thought the court would not likely find the competitor's color to be "approximate[ly] equivalent." – phoog Jan 28 '16 at 23:23
  • 4
    @phoog * shrug * The point is, claiming this is a trademark on "the color brown", without any further qualification, is not actually an accurate statement. – recognizer Jan 28 '16 at 23:31
  • 2
    I suspect the "approximate equivalent" bit is meant to cover fading - vehicles left outside and clothing repeatedly washed change color over time. – T.J.L. Jan 29 '16 at 13:47
  • How does the Trademark Dilution Act affect the limitation to "that particular industry"? – Damian Yerrick Jan 29 '16 at 17:45
  • Underneath the “Description of Mark” section, it says “Color(s) Claimed: Color is not claimed as a feature of the mark.” What does that mean, since the obvious interpretation (this is not a trademark for a particular color) is obviously false? – Daniel H Dec 13 '16 at 21:25
16

The other answers have somewhat implicitly already answered this particular question, but I wanted to point out an important detail.

anyone that uses that same color is subject to trademark infringement?

No. Trademarks are only registered for a particular industry. For UPS, that would be logistics, parcel delivery, transportation, and some related ones. Also, trademarks are for, well, trade.

So, practically speaking, you only infringe when you are a competitor. (That's not quite true, but somewhat close.)

You can see for yourself, what exactly the claims of the trademarks are. The USPTO has a registry of all trademarks, the interesting ones are serial numbers 75039323, 75065911, and 76408109.

Jörg W Mittag
  • 2,253
  • 15
  • 15
9

Lack of confusion

The point of trademarks is to prevent customers confusing companies, and prevent companies from misleading (intentionally or not) customers that they are some other company (e.g. better known, better reputation, with more advertising) or related to them.

UPS trademarks essentially mean that if you are in their industry, then using similar branding is prohibited. Trademarking a particular color means that they consider using that or similar color a significant part of that branding - if you run a company doing package deliveries and have either similar logos, similar name, similar color scheme, etc, then UPS may sue you on trademark grounds, and the registered trademark on the color will mean that saying "oh, we don't think that using this color in this industry is associated with UPS" is not valid.

Peteris
  • 2,199
  • 14
  • 17
7

Yes but it is that specific shade and only in the logistics industry.

Cadbury have trade marked purple.

Dale M
  • 208,266
  • 17
  • 237
  • 460
  • 1
    This is correct. If another delivery company used the same colour it could cause confusion, which would more than likely have been done on a purpose. – Terry Jan 28 '16 at 08:06
  • 2
    Which specific shade? They're claiming trademark on "the color brown," not on any particular variety of brown. – phoog Jan 28 '16 at 14:26
  • 2
    This answer seems contradictory. You've said "that specific shade", but UPS are claiming "the color brown", and your example is Cadbury trademarking "purple". Neither make any reference to a shade. – JBentley Jan 28 '16 at 16:45
  • 1
    To infringe the trade mark the brown used must be sufficiently close to UPS brown to cause confusion i.e. It is inherent in the nature of trade marks that is that particular shade. – Dale M Jan 28 '16 at 19:24
  • 1
    @phoog no, they're claiming trademark on "the color chocolate brown", as is blindingly obvious to see. – hobbs Jan 28 '16 at 21:44
  • @hobbs in the actual trademark registration, they are claiming any shade that is "approximate equivalent of" the color chocolate brown, which could be a rather wide chunk of the spectrum. In their marketing material, however, they just claim "the color brown." – phoog Jan 28 '16 at 21:58
  • 1
    @phoog: I think by "the color brown" they mean "that color brown there, the one we use", not "every color that in poor light someone might describe as brownish". But sure, it's possible that their email has over-simplified their actual trademark claim to the point of being misleading, and also possible that they're over-claiming intentionally in the hope of avoiding cases that would be in doubt. – Steve Jessop Jan 28 '16 at 22:27
  • @SteveJessop but critically, the trademark has to be robust against fading. I might just want to start a company that delivers packages in vans painted, and wearing uniforms, dyed in a significantly darker but fade-prone shade of brown. There's no way that would hold up in court. – phoog Jan 28 '16 at 22:30
  • @phoog: well of course, because once they started fading they'd be confused with UPS. For that matter you could paint your vans in a green paint that gradually turned UPS-brown in sunlight, and again you'd likely be held to have infringed just as soon as that colour change happens. The colour they started out is irrelevant, what matters is the colour of the vans you're driving. Whether UPS could get prior restraint on the basis that they know your non-UPS shade will turn UPS-coloured, even though it hasn't done so yet, I've no idea. – Steve Jessop Jan 28 '16 at 22:33
  • @SteveJessop And what about the fact that UPS vans and, more particularly, uniforms, also fade? They don't all exactly match the Pantone color (hence "approximate equivalent" but some may be faded so much that they are no longer approximately equivalent). – phoog Jan 28 '16 at 22:36
  • @phoog: UPS is permitted to drive vans that don't carry its trademark, if they want to. So there's no problem if some of their vans have faded so badly that they're no longer identifiably UPS-coloured. But I find the point interesting: I wonder if there have been any trademark cases in which an infringement has been held to occur because the defendant is using a symbol that looks like what the plaintiff's mark would look like, if something happened to damage the plaintiff's mark, but otherwise would not be held to resemble it. – Steve Jessop Jan 28 '16 at 22:37
  • For example, if I trademark the plain white T-shirt, and then you start selling pink T-shirts, can I claim they're passing off as my T-shirt after it's been accidentally washed with something red ;-) – Steve Jessop Jan 28 '16 at 22:41
0

I don't think UPS is making any extraordinary claim, because they are stating this in the context of trademarks.

They are putting people on notice that they are guarding their signature brown color in the context in which they have a right, which is where that might lead to confusion with UPS's services - shipping boxes, delivery vans, private mailbox stores, etc. And they have some real exposure here.

First are the signature UPS vans, which also have signature fiberglass nose trim. They replace them by the thousands and sell the used ones. They are painted white before sale, but that is a cost they could escape if they could enforce their claim in the color. Also, the paint is very cheap, and the next owner will want to repaint them properly - brown might be a tempting choice.

Aside from selling to desperate (Amazon contractors who need trucks Right Now and can't wait in line for new ones) or small-fry (two guys and a truck) type delivery services, former UPS vans are wildly popular for those building a Tiny House onboard, aka #VanLife. This is increasingly popular due to pressures in the housing market - a Google employee even famously did it. However, people with houses do not like it. UPS does not want people looking askance at brown vans in their community, so they do not want to be associated with #VanLife.

Another area of vulnerability is that The UPS Store is franchised. Family-owned franchise operators are made restless by decisions made by UPS Corporate - ask any of them how they feel about Amazon returns "business". As such you have defections, and UPS wants to deter this by forcing "apostates" to spend money updating signs, trim and furniture to not be brown.

They could make all these claims without the disclaimer you note, but the disclaimer makes it easier to convince a jury that the actor reasonably should have known they were infringing.

Harper - Reinstate Monica
  • 19,563
  • 2
  • 27
  • 81