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Last Updated: Wednesday, 11 August, 2004, 16:10 GMT 17:10 UK
Can you 'own' a colour?
By Duncan Walker
BBC News Online Magazine

A spat over who's allowed to use the colour orange has broken out between mobile phone company Orange and upstart easyMobile. Is it possible to "own" a colour?

Unveiling plans to enter the fiercely competitive UK mobile phone market, easyJet founder Stelios Haji-Ioannou would have been naive to assume his competitors would simply step aside.

easyJet plane
easyJet is moving into the mobile phone business

What he may be more surprised about is the nature of his first major battle with competitors in the multi-billion pound industry.

Unsettled by easyMobile's plans to use the same vivid orange livery as other arms of easyGroup, the mobile phone company Orange is arguing it got there first.

It claims the prospect of its rival having a similar logo to its own will cause confusion among its customers and damage its business.

Can a company really claim ownership of a colour?

Shapes and sounds

Announcing his intention to fight for the right to be orange, Mr Haji-Ioannou said: "I'm quite happy to see them [Orange] in court. I don't believe they have a case."

What you have got is a situation where the easyGroup has built up a strong reputation with the colour orange in areas including airlines,
Morag Macdonald

Use of the colour is the easyGroup's right, says a spokesman. "It's the colour we have always used, right from the outset, when we set up the airline and we have used it ever since."

But companies are very particular about protecting their image, and often consider their logo's colours as their own.

BP took action against an Irish petrol company revamping its forecourts in a shade of green similar to its own, while Deutsche Telekom has been defending its magenta hues in Europe.

The reality is that companies can take action over their logos as well as their names, says Morag Macdonald, of solicitors Bird & Bird.

Trademarks mean firms have a right to protect "shapes, sounds or colours if it's distinctive as part of their business", she says.

Hat firm

The rules apply in a particular area, so Cadbury's, for example, can argue that their famous shade of purple cannot be used by other chocolate makers.

Orange shop
Orange is keen to protect its logo

They could not stop a firm making hats from using the same shade though, as they would be in different businesses.

Further protection is available under "passing-off" laws, which allow a firm to argue a competitor is making itself appear like another product to take part of its market.

Things are not so simple when a company expands into new areas, as has happened with Mr Haji-Ioannou's firm.

"What you have got is a situation where the easyGroup has built up a strong reputation with the colour orange in areas including airlines," says Ms Macdonald.

"Meanwhile, Orange have built up a strong reputation in mobile telephony."

Had the firms remained in separate areas there would have been no problem, but with the two companies now finding themselves as rivals there is a clear problem.

Green meanz Heinz

It is not just Orange which is picky about its image.

Heinz has legal protection for the distinctive turquoise of its cans.

Toblerone has the rights to its triangular chocolate boxes and JR Freeman and Son have registered the first six bars of Bach's Air on a G String in relation to their cigars.

BP was successful in its battle against its Irish rival, arguing that potential customers could pull off the road expecting to see one of their stations because they had seen the colour.

For Orange, the argument rests on its trademark of a colour it has very specifically registered as orange Pantone No 151.

"We know people aren't stupid, that they can tell the difference between the words 'Orange' and 'Easy', but 'Orange' has come to mean something and we want to protect our brand," says a spokeswoman.

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