T-Mobile Asserts Charitable Startup Lemonade Infringes Magenta MarkNovember 26, 2019

National Public Radio (NPR) reports T-Mobile has sent a cease and desist letter to startup Lemonade. For those unfamiliar with Lemonade, Lemonade is a public benefit corporation quickly growing in popularity, particularly with millennials, because the company donates all unclaimed money to charities of the policyholder’s choice.

T-Mobile asserts Lemonade’s use of a color allegedly similar to Magenta infringes its federally registered trademark, U.S. Serial No. 78798428. The registered mark “consists of the color magenta alone, which is the approximate equivalent of Pantone Matching System, Rhodamine Red U, used on the background of product displays and advertisements found in a store.” The registered mark is associated with telecommunication and information technology services.

It appears T-Mobile is broadly seeking to enforce its trademark rights outside of telecommunication and information technology services. T-Mobile told NPR “that it has lots of businesses beyond just wireless service and the company feels it’s important that there’s no confusion when customers see the color magenta.”

Companies have increasingly tried to enforce colors and/or color schemes as trademarks since the possibility of registering color-related trademarks with the USPTO was first attempted in the 1980s. For example, in 2017, a U.S. District Court in Kentucky ruled in favor of Deere & Company in a lawsuit that was filed to protect use of the trademark green and yellow color combination on John Deere agricultural equipment.

Some companies however have not been so lucky in convincing the Trademark Office and the courts to associate, via a registered federal trademark, their brand with a particular color. The TTAB in 2017 denied Cheerio’s appeal for registration of the color yellow on a cereal box. Judge Anthony R. Masiello reasoned the healthy cereal brand cannot have exclusive claims to the color because other breakfast items, including cereals, also use it in their packaging, noting there is an “industry practice of ornamenting breakfast cereal boxes with bright colors, bold graphic designs, and prominent word marks.”

Gregory “Lars” Gunnerson is a Patent Attorney in the Mechanical and Electrical Patent Practice Groups at McKee, Voorhees & Sease, PLC. For additional information please visit www.ipmvs.com or contact Lars directly via email at  gregory.gunnerson@ipmvs.com.

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