Sun, Feb 20, 2005 - Page 11 News List

Lawsuit looms over the color orange


As a noun, it is the bane of rhyming poets. As a fruit, it is a widely enjoyed source of vitamin C. But as a color, orange could one day become the legal property of Orange, the British mobile phone company.

Orange said on Friday evening that it would sue easyMobile, a wireless start-up founded by the entrepreneur Stelios Haji-Ioannou, who also founded the easyJet discount airline. Orange wants to keep easyMobile from ever using its signature color in advertisements.

The crux of the argument is that ads for Orange prominently feature its namesake color. Its shade of orange is similar to the one used by all the easyGroup brands, and to one that easyMobile plans to use in advertisements of its own.

"We have been unable to secure a commitment from them not to infringe our rights regarding the use of the color orange," Orange said in a statement. "We have been left with no choice but to start an action for trademark infringement and for passing off" -- or trying to masquerade as Orange in the market.

Haji-Ioannou responded with customary gusto.

"It is our right to use our own corporate color for which we have become famous during the last 10 years," he said in a statement, referring to the easyGroup brands. "Not only will we not be `passing off' as them, but we also want everyone to know that they are our enemy."

Suing for the rights to a color is not as unusual as it may sound, lawyers said.

"It's not completely new for such a claim to be made, and for it to succeed," said Dinah Nissen, an intellectual property lawyer and partner at Freshfields Bruckhaus Deringer.

"Orange will have to show it has built up some reputation in the color orange, which shouldn't be hard to do," she said.

But Orange, the mobile phone unit of France Telecom, will also have to prove that easyMobile's use of the color conveys to customers that it is connected to Orange, which will be more difficult, Nissen said.

Some colors, of course, are more fought over than others. United Parcel Service, for example, has a trademark on the shade of brown that decks its uniforms, its logo and its trucks.

"We've been using that color for several decades," said Donna Barrett, a spokeswoman for UPS.

"We really don't have too many problems" with other people trying to use it, she added.

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