Orange v EasyMobile
Published September 2004
Here's The Scoop
(Source - Ward Hadaway) - Stelios claims that Orange has threatened to stop him using the colour orange in the branding of his new mobile phone venture. Easymobile, have caught the interest of the nation, and led many to question can you "own" a colour?. First of all, it is possible for companies to claim rights to a colour. The way in which trademark legislation is drafted allows businesses to claim rights to what is referred to as a "sign". A sign is something that differentiates your business from someone else's business, and if that is a colour, then as long as you are able to prove that people associate that colour with you, you can acquire trademark rights for which you can obtain a registration.
In this case there are two businesses who have established a reputation for the same colour, orange, but in distinct and separate markets. There has been no overlap and therefore no previous clash of interest in the orange sign. However, now that Stelios is looking to extend the use of easyJet's corporate orange colour to the mobile phone market, an element of direct rivalry rears its head and there is the possibility of confusion with Orange mobile phones. The reputation arises by the use of a specific colour, usually referred to using the pantone system. Indeed, Stelios' companies have applied to register the colour orange, pantone reference 021, as a trademark relating to easyJet and Easy internet café.
With this in mind, Orange will no doubt seek to protect their right to exclusive use of the colour orange in the mobile phone market through appealing against infringement of their registered trademark. Many companies have sought to register their use of colours through the trade mark registration system before. Barclays Bank has registered the blue colour, used by its Banking system, in a bid to formalise ownership within its market. BP registered a mark consisting of the colour green, pantone 348c, as part of its identity, as it covers a significant proportion of its service station, and recently used its IP rights over this colour to prevent a rival petrol retailer using the colour green, claiming that it caused confusion.
The court ruled in favour of BP and confirmed that it is possible to register colours as trade marks. The court emphasised at this point that registration of colours would be easier for businesses if it was for "a colour as applied to the shape of goods". Ward Hadaway has successfully conducted a number of proceedings on behalf of clients seeking to register trademarks which have been opposed by the Easy Group of companies. This is a clear example of the principle that businesses need to seek registrations in the markets in which they trade - and this can be successfully done, regardless of the might and size of the opposition. That is where their rights lie.
It will be interesting to see what easyJet does to defend its intended use of the orange colour in the mobile phone market and if it can be successful against Orange.
We has also learned from third-party sources that Vodafone could carry Motorola’s first 3G clamshell, the V975. It is believed that it will be sold at a ‘cheap, pre-pay price point’. 3 is rumoured to have ordered substantial numbers of a candybar version of the handset.
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