Deutsche Telekom, T-Mobile’s parent company, sent a cease and desist letter to Lemonade, an insurance start-up company, demanding that they discontinue using the color magenta in their marketing materials. Deutsche Telekom is the registered owner of a trademark on a specific shade of the color magenta, RAL 4010.
According to the Lanham Act, trademarks are defined as any word, name, symbol, or device, or any combination thereof” that is used to identify and distinguish one’s goods or services from those of other sources. The overarching purpose of trademarks is to protect consumer confusion between product and service offerings. Further, pursuant to the United States Supreme Court, colors can be protected by a trademark “when that color has attained ‘secondary meaning’ and therefore identifies and distinguishes a particular brand (and thus indicates its ‘source’).”
In this way, T-Mobile is not the only company to have trademarked a color. Indeed, numerous other companies have taken similar steps to protect their trade dress. For instance, Tiffany’s has trademarked their shade of “Tiffany box blue.” Similarly, Target has trademarked its iconic shade of red. As a further example, UPS has trademarked the brown that appears on its uniforms and trucks.
Similar to trademarks for words and designs, an owner of a color trademark can sue another for trademark infringement if another uses that color or another “confusingly similar” shade. More particularly, the trademark owner must still prove that consumers are likely to be confused, mistaken, or deceived as to the affiliation, connection, or association of the other party using the similar shade or the approval by the trademark owner of that parties’ goods or services.
T-Mobile received an injunction on Lemonade in Germany, which forced Lemonade to stop using the color magenta in relation to their company in Germany. Instead, temporarily, the insurance company has been using red. Moreover, in response to the injunction, Lemonade filed a motion with the European Intellectual Property Office (EUIPO) to invalidate T-Mobile’s trademark on magenta and also petitioned the German trademark office to remove Deutsche Telekom’s claim to any right on magenta as it relates to insurance. In this manner, Lemonade argues Lemonade and Deutsche Telekom are in two disparate markets, thereby decreasing like likelihood of customer confusion because a person is unlikely to confuse the two brands. T-Mobile maintains their color mark is associated with its brand “beyond the classic industry environment.”
In response, T-Mobile asserts that it does offer insurance on digital services, such as cybersecurity, and it sells other insurance policies to cover its devices. Lemonade also argues their shade of magenta differs from the one that Deutsche Telekom has trademarked and T-Mobile utilizes. In its social media campaign against T-Mobile, Lemonade even created a chart titled “some of the colors Deutsche Telekom thinks it owns,” where they have the trademarked shade of magenta side by side with the shade that they are using, as well as other colors that Deutsche Telekom has tried to prevent other companies from using.
In an effort to defend themselves, Lemonade is using social media to gain attention for the case. Their instagram page has over 18 million views and their hashtag #freethepink is gaining attention. The social media campaign appears to be working, at least to some extent, as people have been expressing their unhappiness with the actions taken by Deutsche Telekom, stating that it is foolish to try to claim a monopoly on a color. In addition, people have stated that, by the standard set forth by T-Mobile, the telecom company should go after every entity that uses the color pink, including Victoria’s Secret and the breast cancer movement. While these are organizations in very different areas than Deutsche Telekom and utilize very different shades of pink, consumers are aiming to highlight their annoyance.
Deutsche Telekom has not yet taken legal action against Lemonade in the United States. Instead, T-Mobile waited until Lemonade expanded to Germany prior to seeking any legal recourse. It remains to be seen whether Lemonade’s blatant disregard of the cease and desist letter from T-Mobile will spur further legal proceedings, including within the United States.