Part 1: Stratos vs Freia Boble
Given my previous explorations with colour-mark similarity measurement, a recent interesting case[1] caught my eye. The Norwegian IP Office has rejected (pending appeal) an application by manufacturer Orkla to register the blue shade Pantone 2144 C as a colour mark for 'aerated chocolate' (for its Stratos brand), despite a previous court decision that the company was entitled to protection of the shade through long-term and widespread use.
The earlier case arose when competitor Mondelez launched a similar product (Freia Boble) in 2023 using a "strikingly similar" shade of blue (Pantone 2145 C)[2]. Orkla's challenge was successful, with Mondelez ordered to change its packaging and pay damages.
But how similar actually are these shades? My previous work on comparison of marks[3] focuses on the idea that, for certain categories of mark (such as colour), the difference between pairs of marks can be precisely quantified - and that, by extension, it ought to be possible to formulate trademark protection guidelines outlining the threshold to which protection would apply (with a geometric 'distance' of 10 units in RGB colour space being suggested as, perhaps, a reasonable rule of thumb)[4].
Pantone 2144 C (Stratos) is RGB (0,103,185), whilst Pantone 2145 C (Freia Boble original launch) is RGB (0,78,168). The RGB 'distance' between these two colours is 30 units, making them objectively ('only') 93.155% similar (by expressing the distance as a proportion of the maximum possible distance between two colours in RGB space).
Was the original case decision 'correct'? The two shades are noticeably different when viewed side by side, but how noticeable is the difference when the products are viewed separately? How close should product types need to be in order to 'offset' a lesser degree of similarity between colour marks, when assessing potential 'clashes'?
Part 2: Heinz
So, brand colours - my new favourite thing - are apparently everywhere at the moment. But the material generally does not bode well for brand consistency (or any prospect of a robust quantitative framework for colour mark protection).
For example, Pantone, the global colour standard, released a 'Heinz 57 Red' shade "emblematic of the [ketchup's] enticing appetizing arousing juicy red color [sic]"[5,6]. According to Pantone's post on X (and my desktop 'colour picker' tool), this colour is RGB (131,31,31). This is rather different to the 'Heinz Red' offered by various online colour archives - with one source (no pun intended) giving a value of (200,41,34)[7]. How different are these two shades? Precisely 15.8% different (70 RGB units), according to the distance between these two colours in RGB space, as per my previously-outlined algorithm.
Heinz themselves are rightly very defensive of their ketchup colour, as a means of protecting against refills and counterfeit versions, even going so far as to publish a colour 'cheat sheet'[8] (see below). On their poster, 'Heinz' colour is (211,32,38), actually 80 units (18.2%) different from 'Pantone Heinz 57 Red' (but only 15 units (3.3%) different from Schemecolor's 'Heinz Red').
For comparison, the closest 'not Heinz' on Heinz's poster, (185,37,35), is 27 units (6.0%) different to 'Heinz', with a spectrum running all the way to (104,51,20) ('Is that even ketchup?'), a whopping 110 units (24.9%) different from 'Heinz' (but only 35 units (8.0%) distinct from 'Pantone Heinz 57 Red').
It's all very confusing...
Part 3: T-Mobile
In this latest instalment of my exploration of brand colour disputes, I consider the case of telecommunications provider T-Mobile (part of Deutsche Telekom).
T-Mobile is notoriously protective of the magenta colour used in its branding, and has secured a colour trademark registration for 'Pantone Rhodamine Red U' (RGB (228,76,154)[9]), despite actually using a range of shades in its own marketing. In 2008, the brand (unsuccessfully)[10] launched a case against rival telecommunications provider Telia for their use of a shade of magenta, followed by a successful case against AT&T subsidiary Aio Wireless in 2014.
In 2020, T-Mobile targeted insurance provider Lemonade (lemonade.com), despite their shades of magenta being rather different and the facts that the overlap between the areas of business of the companies is tenuous at best. Lemonade ultimately changed the colour of its marketing materials in Germany, before launching an action in Europe to invalidate Deutche Telekom's colour trademark[11], with an initial successful outcome in France[12]. This had been just the latest in a round of disputes by Deutsche Telekom against companies in a range of industry areas, under the justification of the wide portfolio of trademarks held by the organisation in a range of areas, extending to fashion and healthcare.
Lemonade itself has been using shades of pink since its launch in 2015, with a brand association sufficiently strong that the organisation has even commissioned art projects relating to the pink shade #FF0083 (the hexadecimal representation of RGB (255,0,131)), including the creation of an associated portfolio website at ff0083.com (a very nice creative use of a domain name!).
The predominant colour used by T-Mobile in their branding (as of the 2022 article referenced above) is (of the order of) RGB (228,0,116), and with Lemonade's 'banned' shades including (255,86,173), (184,1,145) and (187,2,142).
The difference in colour between T-Mobile's trademark and their own brand colour is 85 RGB units (only 80.8% similarity), as compared with the distances between their trademark and Lemonade's three contested colours of 86, 87 and 85 units (and whose distances from T-Mobile's own brand colours are 107, 53, 49 units, respectively).
Whilst there is some reasonable justification for T-Mobile's earlier cases against companies in the same industry area, the Lemonade case highlights a very aggressive approach against an organisation in an area of business which is a long way from that for which T-Mobile is primarily known. Discussions in my earlier series of articles on the subject have suggested that a formal framework for colour-mark protection should be reasonably expected to include a 'trade-off' between the closeness of the colours of competitor brands and the closeness of their areas of business.
In the case of T-Mobile, however, the organisation appears to be attempting to protect a 'sphere' of colour varations in RGB space of radius approximately 100 units - covering a visually disparate range of shades - across a wide spectrum of areas of business. This 'sphere' (volume 4,188,790 cubic units) would encompass over one-quarter of the total volume of RGB space (2553, or 16,581,375 cubic units) - i.e. the universe of all possible colours - which would clearly be an unsustainable situation if all brands attempted to do so.
The tools are available to construct a consistent quantitative framework for the protection of colour marks - perhaps it is time the industry looked more closely at putting something in place along these lines.
References
[2] https://haavind.no/content/uploads/sites/2/2024/12/Food-beverage-insight-winter-2024.pdf
[4] https://www.linkedin.com/pulse/what-degree-variability-might-covered-within-david-barnett-ajyoe/
[5] https://x.com/pantone/status/1262819916928991232
[7] https://www.schemecolor.com/heinz-red-color.php
[9] https://icolorpalette.com/color/pantone-rhodamine-red-u
[11] https://thehustle.co/can-a-corporation-trademark-a-color
This article was first published as a series of LinkedIn postings / articles on 6, 7 and 10 February 2025 at:
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