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Comment by pavon | Hacker News Reader

I don't see a problem with trademarking colors for a particular brand, it can be an integral part of a brands identity, and copycats using the same colors can cause consumer confusion. The problem is that there is no penalty for aggressively "enforcing" it beyond the small scope in which it was granted. This is true for many aspects of trademark law in general, not just color. That is what we need to crack down on. The USPTO should be stricter about limiting the list of goods and products that trademarks are filed for, and there should be penalties for threatening companies for using the trademark in areas that are clearly outside of those.

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Disagree. There's no need for trademarked colours to be able to go against copycats. In the EU it's illegal to buy (not just sell) copycat items like fake Louis-Vuitton bags (or even to bring one from your holiday), and that's not based on colour but on a much broader view of deception.

We shouldn't support the overreach of trademark law into such basic aspects of life, period. The Coca-Cola red that is shown as trademarked there is about as generic as it gets, no one should be able to lay claim to this, even against other drink makers.

Aren’t you just describing what trademarks are though? Yes, as you say, the whole point is that you cannot confuse consumers about the origin of your product. And all a trademark is is a public record of a distinguishing characteristic that, if you use that characteristic for your product in a certain context, is likely to confuse consumers.

No, trademarking “red” for soft drinks is stupid, but people still shouldn’t be allowed to use Coca Colas labels to sell non Coca Cola soft drinks.

If you want to make a red label with white letters on it that is named Awesome Cola, then you should absolutely be allowed to do that. If Coca Cola can’t protect their business by making the best product then they can frankly fuck right off. This is the European mindset at least, consumers owe nothing to corporations.

The thing is, to show that a product violates a trademark requires showing that consumers are confused or will be confused about the origin of the product. This seems to always get lost when people see sensational descriptions of trademarks like "DeWalt owns the colors yellow and black." No, they don't own a color or combination of colors. It doesn't even mean that no other power tool can be yellow or black, because it's probably possible to make a power tool that is yellow or black but which doesn't confuse consumers into thinking it's a DeWalt power tool.

I’ll admit I don’t know a lot about trademarks, but we’ve had a few cases here in Denmark where a small business were basically on a path to close down because a larger chain reported the small business for trademark infringement over something silly like having the same last name in your business that the large chain is called. Because of the way the law works, you have to spend some months defending yourself (and shut down your business while you change your name/logo/whatever), which often isn’t affordable for small businesses.

Luckily Denmark being Denmark, as soon as these things hit the news the public responds by hating the larger business and throwing amazing amounts of support at the small businesses. I just don’t think the law is very good when the public needs to circumvent it in order for the small businesses to survive, even when the small businesses are in the right to begin with.

So you are very likely absolutely correct, but because the world sort of sucks, the copyright law still hurts people it shouldn’t. I’m not sure there is an easy solution, because obviously you wouldn’t want direct copy products or DeWalt in stores either, but it’s certainly not good the way it is right now.

Re using colors can be helpful for consumers.

In the potato chip market in Australia, across multiple brands, purple means salt and vinegar, green means chicken, yellow means cheese and onion, blue means plain salt.

In the soft drink isle, red means cola, yellow means lemon, orange means orange, etc.

In New Zealand, green means salt & vinegar, light green means green onion, yellow absolutely means chicken, blue means plain salt, light blue usually means sour cream and chives, and purple means random stuff like bacon.

It does depend on the brand but these are usually the colours.

Yellow has to mean chicken though - it would be weird if it didn't!!

> chicken

I'm shocked to learn of such a thing.

I didn't know they had them in Australia too. It's a common chip flavor in Canada along with ketchup.

It's completely foreign to me too. I'm sure they're tasty, but I'm having trouble imagining what they would taste like.

If they're anything like Chicken in a Biskit crackers (should be available in most supermarkets in the US), they taste like something that's been dipped in broth.

> is likely to confuse consumers.

Yet strangely it is perfectly legal for corporations to confuse consumers with misleading packaging and other tricks.

And I am sure if you actually allowed other ISPs in Germany using magenta as color you'll quickly see that nobody will confuse the two. Everyone unfortunate enough to interact with T-Mobile will be very aware of the differences.

That is a confusing example to choose. The EU protects fashion under copyright in ways that the US doesn’t. So this example takes the discussion into multiple forms of IP.

(or even to bring one from your holiday)

Wait, you can’t buy a non-LV bag with LV logo somewhere and use it in EU? What about fake wrist watch?

As long as it's for your own personal private use and transport it over the border yourself (i.e. not via post) there is no law broken.

If you have multiple such items in your luggage they will claim it's not for solely private use.

Didn't know about that exception and checked it just to be sure (and it's true):

https://www.belastingdienst.nl/wps/wcm/connect/bldcontenten/...

Thanks

This is exemplified by powertool brands which have distinct color schemes for their Tools: Milwaukee (Red & Black), DeWalt (Yellow & Black), Fein (Orange), Makita (Teal), Ryobi (Chartreuse), etc. Some competitors have similar but not identical color schemes, for example Milwaukee vs Craftsman, Fein vs Ridgid. Though I don't think any "own" the colors in the color schemes --but I could be wrong.

Fluke’s trademarks were able to prevent a competitor from importing yellow multimeters and getting stuck in customs:

https://hackaday.com/2014/03/19/multimeters-without-a-countr...

Though they made good on this incident:

https://www.sparkfun.com/news/1430

It's a bit misleading to say "yellow", it's the combination of dark gray body with yellow. Copying their branding with black instead of dark gray is fine, if Amazon is anything to go by.

This one crosses the line for me. There's a reason tools are brightly colored. It makes them easier to find in the mess of whatever you're trying to build or repair. If a yellow multimeter with a dark grey face can be trademarked and defended successfully, what about a tape measure with an orange or yellow case and black on the side? The yellow or orange is a functional part of the product. To say we have the trademark when you combine it with something as generic as dark grey on the face is ridiculous to me.

> what about a tape measure with an orange or yellow case and black on the side?

Interesting you should mention that, since Stanley has a trademark on a particular layout with yellow on the side.

I don't think it's particularly ridiculous, although I work for a company that is synonymous with a color. These are after using the particular consistent color branding for 20 years, 50 years, 100 years. After a generation or two, people associate the color with the category, but there are tons of other colors, even for specific criteria like "high viz". Entirely yellow is fine! Fluorescent green is fine! Light grey and yellow is fine.

Yeah, I think that shouldn't be able to be trademarked. I also work for a company with a trademarked color. It's ridiculous for us too. Though at least ours is a distinctive and kind of unusual shade rather than one of the primary colors. Being the exclusive producer of yellow and black tools isn't something I feel is necessary for a business.

Dewalt is interesting, because I always thought they copied industrial/pro colors, like caterpillar

Oh, you bring up something interesting now. I think Deere, has a "Deere green" (not the song).

Maybe, but yellow & black is also standard colour combination for industrial safety.

DeWalt won't be able to stop a competitor from selling yellow and black safety tape because the color is essential to the functioning of the product. The color of a cordless power tool, however, is not essential to its function; the color could be red, orange, chartreuse, blue, and the tool would work just as well.

My dad has an ancient DeWalt radial arm saw, and it's green.

Stanley tools are also black and yellow.

Dewalt is one of Stanley Black and Decker's brands. But I don' think they offer many power tools under the Stanley brand (though now SBD is using Dewalt for hand tools like tape measures, etc.).

I disagree.

If we used copyrights as an comparison, where copyrighting a book is indeed ok, this would be like copyrighing a word, eg "Harry". Yes, Harry Potter is a brandname, but there are many other people named Harry, some of them might even be in magic books, and atleast one of them was a magician (although a different kind) before the Harry Potter books were even written.

A color is a color... pink is pink, magenga is magenta, and if you go into a market large enough, and and everyone tradmarked a color, soon, there would be no distinct colors left.. want to open a restaurant with a red logo? Nope, kfc... yellow? nope, mcdonalds.. green? nope, starbucks. Blue? nope, white castle.

One problem is that you have to enforce your trademark, if you don't want to lose it.

[None of this is legal advice of course]

Nope. The trademark people don't have some magic "Oh you didn't defend your trademark, now it's gone" feature. There is no meter somewhere measuring how "defended" your mark is, and when it reaches 0% the mark vanishes.

If you are not enforcing certain rights you have, and people come to rely on that, a court might conclude (this is called Estoppel) that you lose the ability to chase them for the violation since apparently you didn't care. But you don't magically lose your ability to chase other people, nor to chase people for trampling on other rights that you do care about. You get to draw the line.

The excuse that "We have to or we'd lose our trademark" is bullshit and people should be called on it when they try it.

The closest is they'll cite examples like Hoover and Xerox where a name mark became so incredibly famous that it was synonymous with the whole class of object and courts ruled that as a result you could not assume when somebody says "Xerox this for me" they're referring to the protected mark any more. These companies, far from "losing" their trademark, instead are huge successful businesses who still have their marks but are not allowed to extend those marks into our whole lives. If you put a Xerox brand on knock-off copiers or printers don't worry, they still have a trademark, they will still sue and they will still win.

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