I remember being surprised a few years ago when some camera manufacturer (Canon?) showed the letter "alpha" as trademarked in one of their ads.
Though my understanding so far is that this works for trademarks because it only restricts the use of symbols as part of a brand, not their everyday use or use in other commercial activities - in contrast to copyright or patents.
So if I trademarked the color "sky blue", then only I would be allowed to use it as part of a brand, but it wouldn't restrict anyone from taking pictures of the sky.
Anyone can take pictures of the sky, of course.
The trademark only applies when it is part of a brand identifier, but there is some room for subjectivity there. For example, Sanka argues that you should only be able to make the spout of a decaf coffee container in a restaurant Sanka orange, because the only reason to make it Sanka orange is to give your customers the impression that it is indeed Sanka. The counter-argument is that orange just means decaf to the customer.
> The counter-argument is that orange just means decaf to the customer
That might be a case of a trademark being genericized. Or the trademark should not have even been granted in the first place if orange meant decaf before Sanka started using it.
It didn't, though. Orange meant decaf because decaf (usually) meant Sanka.
BTW, trademarks aren't "granted". You can register a trademark, but you don't have to. Registering can help in a trademark dispute, but you can win without registering it, and you can lose even if you did register it.
It's even more restricted for the brand. If you trademark "sky blue" then you'd have to prove that consumers have a strong association between the color and your brand. And even then, other brands can still use "sky blue" in their branding as long as they're not competing in your industry.
People often bring up trademarking colors as crazy but I actually think it's one of the more sensible parts of IP law.
I agree that trademark law is generally pretty sensible.
It's worth noting that it's pretty expensive to trademark something, and you need to keep paying to keep your trademark. As a policy this is sensible for something the depletes a "commons" like words or colors.
(It's possible to argue that trademarks aren't expensive enough for some corporations. But for the costs are a significant disincentive to just go trademarking everything)
If you haven’t filed for state or federal registration, your trademark protection is based solely on using your trademark in commerce within a particular geographic area. This limits your rights, as you can only enforce your trademark rights for the specific area where your trademark is used.
> Though my understanding so far is that this works for trademarks because it only restricts the use of symbols as part of a brand, not their everyday use or use in other commercial activities - in contrast to copyright or patents.
Not exactly.
In some of the cases identified in this article the color itself is trademarked.
Trademarks only apply for specific categories though. For example you cannot use the Tiffany Blue for anything in international class 014:
> Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments. - Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and chronometric instruments.
But that completely restricts the use of that color in that class. You don't have to use any other branding elements from Tiffany to be infringing.
> it wouldn't restrict anyone from taking pictures of the sky.
Trademarks cannot restrict taking pictures.
Generally speaking trademarks only restrict commercial usage - however "publication" can be considered commercial use and "publication" can cover a very large set of things.
For example if you took a photo of the Tiffany blue and some jewellery and then shared it on Facebook it's likely Tiffany could succeed in a takedown request.
> For example if you took a photo of the Tiffany blue and some jewellery and then shared it on Facebook it's likely Tiffany could succeed in a takedown request.
If the mark on the jewelry is genuine (i.e., if you are reselling genuine Tiffany jewelry), then Tiffany should not succeed in a takedown request because of the trademark exhaustion doctrine (an analogue of first-sale doctrine for copyright). On the other hand, appropriating the Tiffany marks to sell non-Tiffany jewelry would probably be infringing.
(Edit: It's even more complicated. Even if you weren't selling jewelry, you could still be passing off your use as if it were authorized by Tiffany (e.g., in an advertisement for something else). If, however, you were parodying Tiffany in your photo, then your use of the marks could be trademark fair use. So there are many ways a photo of jewelry accompanied by the Tiffany marks could go.)
To clarify - I meant if you took a photo of a Tiffany blue color swatch and then posted a pic of it next to non-Tiffany jewellery a takedown request could succeed.
The issue is the use of the mark by another for the same goods or services. So, another company can use the letter alpha for a chain of pizza restaurants and there's no problem. If a camera company starts using the letter alpha on cameras, however, then it is likely to cause confusion to consumers.
Though my understanding so far is that this works for trademarks because it only restricts the use of symbols as part of a brand, not their everyday use or use in other commercial activities - in contrast to copyright or patents.
So if I trademarked the color "sky blue", then only I would be allowed to use it as part of a brand, but it wouldn't restrict anyone from taking pictures of the sky.
Would that be correct?