T-Mobile Sues AT&T Subsidiary Over Use of the Color Magenta

In a recently-filed federal lawsuit against AT&T subsidiary Aio Wireless, telecommunications giant T-Mobile alleges that Aio Wireless deliberately chose the color magenta to advertise, promote and market a competing product, and in doing so, violated the trademark laws and committed unfair competition.

“With full knowledge of T-Mobile’s use of magenta, AT&T’s subsidiary chose — out of all the colors in the spectrum — magenta to advertise, market and promote its wireless services in direct competition with T-Mobile,” the complaint alleges.

“Aio does not use the orange coverage map of its parent company, but instead uses in its stores and on its website a magenta coverage map that is strikingly similar in color to the one used by T-Mobile."

However, what exactly is the "magenta" shade that T-Mobile uses, and does T-Mobile really own it as a trademark?

T-Mobile has undoubtedly been aggressive protecting magenta as a key part of its brand.  

In 2008, it hand delivered a cease and desist letter to Engadget, demanding the immediate discontinuance of the use of the color magenta in connection with Engadget Mobile.

In the more recent fight with Aio, T-Mobile's court filings reference a number of trademark registrations issued to its parent Deutsche Telekom AG for 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."

However, the Washington Post notes that this trademark translates to hex #c63678 in the pantone color coding system.  The Post's reporters also noted that Aio's version of "magenta" maps to #960051.  In other words, not all magentas are the same, and it will be up to the District Court to sort out if there is a viable claim of infringement here.


But can T-Mobile really lay legal claim to a color to begin with?


The answer is absolutely, as a matter of established U.S. trademark law.  Colors can function as powerful indicators of source, when they are not serving a functional purpose.  A unanimous U.S. Supreme Court definitively pronounced on the subject in 1995, finding that colors could acquire distinctiveness over time, and serve the purpose of a trademark.  As we have also discussed, however, how this regime applies to individual cases is tricky.

For example, the color candy apple red as applied to shoe soles was registered as a trademark by Christian Louboutin, but was later limited by the Second Circuit Court of Appeals when Louboutin sought to stop Yves St. Laurent's sale of monochromatic red shoes.

"Cronut" Craze Inspires Trademark Filing Frenzy

Specimen of Use Submitted By Ansel to the Trademark Office

Greenwich Village New York pastry Chef Dominique Ansel, of the Dominique Ansel Bakery, claims to have launched the "CRONUT" -- a delectable pastry that is half-croissant, half-donut, in May 2013.  The line that forms outside the bakery each morning for the Cronut is reportedly 2 1/2 hours long.  Fans claim that the Cronut will "change your life."

Consequently, Ansel has filed for a federal trademark registration on the term as used in connection with baked goods. Wikipedia acknowledges Ansel as the creator of the pastry, and attributes the term to him, despite acknowledging the proliferation of imitators.  

Indeed, only weeks later, a Massachusetts individual named Stephen Foung filed an Intent-to-Use application with the Trademark Office for "THE CRONUT HOLE" as it would be used in connection with retail bakery shops.  Not long after that, a Texas establishment emerged, claiming that it intends to use the term "CRONUTS" in connection with baked goods and downloadable recipes. Bakery publications have dubbed the situation a "Cronut trademark scramble."

But Rosario Auddino of Auddino Bakeries, writes on that Ohio pastry shop's website:

The cronut !!!! WHAT ???? The DOUGHSSANT has been in Columbus/Hilliard Ohio for going on 20 years now.. 

Roy created this one night when he was covering a shift for an employee...New York can eat there hearts out ....The cronut has nothing on the...The DOUGHSSANT... 

Auddino similarly filed for a federal trademark on DOUGHSSANT in May, claiming a first use in commerce in 1994.

No word yet from the USPTO on who owns the trademark CRONUT, nor from critics on who makes the best pastry, but we will accept free samples and render a verdict on the latter.

Are Cheap Stunts That Invite Negative Attention a Good Form of Branding?

In 1984, newly minted singer Madonna achieved global recognition after the release of her second studio album, Like A Virgin.

It quickly topped the music charts in many countries and became her first number one album.  The title track topped U.S. charts for six consecutive weeks.


The song and music video attracted the attention of conservative organizations who complained that it promoted premarital sex and undermined traditional family values. 

Madonna came under heavy fire when she performed the song at the first MTV Video Music Awards (VMA's) when she appeared on stage atop a giant wedding cake, wearing a wedding dress and white gloves.


Madonna went on, of course, to become one of music's most accomplished and successful business people.  According to Forbes and other publications, "Madonna is a cultural icon, and undoubtedly one of the most successful entertainers of all time."

Nearly three decades later, the MTV VMA's present the same opportunity for stars to form under the intense glare of the public eye.  Last night, former Disney child star Miley Cyrus followed suit, giving a performance that has been widely panned as crude and offensive.

Like Madonna, Cyrus became one of the hottest topics of media discussion following the VMA's, ensuring her relevance for at least some period of time.  Lady Gaga and Nicki Minaj have garnered similar trends after the VMA's, shocking audiences with outrageous public performances that included bloody wheelchairs and satanic imagery.

The recurring branding question that arises:  Are cheap stunts that invite negative public attention a good form of branding?


It has often been repeated that "there is no such thing as bad publicity."

This myth has been addressed by public relations experts, who point out that celebrities whose lives become train wrecks may become famous, but that notoriety can also be short-lived and ultimately could be counterproductive, depending on what the celebrity chooses to do with the sudden notoriety.

According to a Stanford University study, there is actual evidence of this phenomenon.

One factor on whether a brand was helped or hurt by scandal is how familiar a brand or product was in the public's mind before the negative publicity.

Analyzing data that cross-matched book sales against critics’ appraisals, they found that negative reviews of a new book by an established author hurt sales, but for books by relatively unknown authors, negative publicity had the opposite effect, actually increasing sales by ensuring the author's relevance.

In other words, if the public had a strong preconception of an author's talent, that positive impression could be damaged by reading new, negative reviews. However, when an unknown author was deemed worthy of criticism, his perceived relevance made him worthy of further investigation.  Relevance is all that mattered for the new writer.

However, the Stanford researchers also found that sales of Michael Jackson’s records actually rose slightly during periods when the singer was in the news for child molestation or dangling his baby over a balcony, thus suggesting that even negative publicity kept Jackson relevant and in the public's mind, even if his public persona was mired in controversy.

Follow-up studies pointed out that as time passed, the public could not remember the specific negative context in which it heard about someone's behavior, but continued to remember that the person must have been relevant.

Further, Madonna (and others) have been able to forge wider, longer-term influence out of the short-lived relevance.

For example, Howard Stern, who was once public enemy number one for his recurring, flagrant violations of radio broadcasting regulations that became part of FCC lore, later signed on to Sirius XM satellite radio and became a judge on America's Got Talent, earning a whopping salary of $100M per year for his radio show, plus $20M per year from the TV network.

Similarly, Lady Gaga, whose public image was forged from a barrage of controversial public displays, is now regularly placed on lists composed by Forbes, including The World's 100 Most Powerful Women from 2010 to 2013, and was named one of the most influential people in the world by Time magazine.

Other entertainers were not as successful as Howard Stern or Gaga in translating outrage into lasting influence.  Charlie Sheen, for example, has struggled with a lackluster career since his public meltdown, as has Lindsay Lohan.

In conclusion, stars such as Miley Cyrus become (or stay) relevant in the short term for their cheap stunts and antics, but there is no guarantee that their long-term career prospects or influence will improve as a result.  That final outcome apparently depends on what they decide to actually do with their star power.