February 27, 2017
Originally posted 2018-11-19 11:17:04
By Christina Severino| www.amdlawgroup.com
A business owner in Elkorn, Nebraska recently won a trademark battle against Limited Brands giant Victoria’s Secret. Beka Doolittle, owner of the online business “The Pink Store” has been going up against Victoria’s Secret this past year over use of the word “pink”. One of the notable brands of Victoria’s Secret is it’s Pink line that caters to young women. Ms. Doolittle’s online business carries items for all ages and items for the home, all themed as (you guessed it) pink. After Victoria’s Secret submitted a petition to cancel her mark on the United State Patent and Trademark Office (USPTO) , Ms. Doolittle enlisted help in order to fight back, and it paid off. Victoria’s Secret finally backed off and cancelled their petition, but with no clear reason.
Although this case does not involve the specific issue of color trademarking pink, it is worth drawing a distinction between color branding and color trademarking. Color branding involves colors associated with a brand’s marketing or label. For example, the McDonald’s famous yellow golden arches are associated with the brand itself. McDonald’s in this case is not entitled to legal rights specific to that color. However, the color as associated with the company’s logo gives them rights. So, another fast food company would not be able to use the golden color to create a brand trademark that includes similar golden arches. Within this industry, this would cause a likelihood of confusion for the general consuming public. On the other hand, many companies have secured color trademarks within their given industries. A great example of this includes UPS’s famous use of brown as a brand identifier. Similarly, the famous Tiffany & Co. jewelry company is associated with it’s turquoise (Tiffany Blue) colored Tiffany boxes. Since there are only so many colors in existence, it is not possible for every color to be trademark, which would result in a phenomenon called “color depletion”. However, if the public can “strongly associate” the color in question with the brand, and that the color is not functional, it may become branded.
Ms. Doolittle’s experience is a testament to any small business owner trying to make their presence known. As a wife with children, Ms. Doolittle did not give up on realizing her dream of becoming a business owner. With the assistance of her attorney, she managed to safeguard her brand and move forward with the operation of her online business, even in the face of a retail giant.
For more information about Brand Protection contact AMD LAW, www.amdlawgroup.com