Protection of Colour Per Se: Or, #FreeThePink and the Battle over “Magenta”

Tim W Dornis Marketing does not work without colours. Not only do the goods themselves often depend heavily on the use of colours or colour combinations, but so do product packaging, the sellers’ retail stores or outlet design, and their trade mark schemes. It is thus no surprise that companies try to protect their ‘own’ colours as ‘colour marks’ or ‘colours per se’ and that they fight over the use of colour by their competitors. The recent colour-mark dispute between Lemonade and Deutsche Telekom is highly illustrative. In 2019, shortly after New York insurance company Lemonade started doing business in Germany, German telecom giant Deutsche Telekom proclaimed that the insurer’s use of the colour pink infringed upon its trade mark for magenta. Deutsche Telekom owns a large number of trade marks – mostly for telecommunication and internet-related services and equipment – but its most important asset is its ‘house colour’....