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March 19, 2005
On Trademarking the Color Brown
Marty Schwimmer responds to my nudge for his take on the newly proposed legislation to expand trademark protection with a poke in the ribs and a nudge of his own:
My initial reaction to EFF's hypo regarding UPS suing Brown's Record Store may be off the mark. UPS's rights are in the color brown as applied to clothes and to vehicles, but its word marks are THE AMAZING COLOR BROWN and WHAT CAN BROWN DO FOR YOU (I based this on a review of UPS' trademark list on its website), neither of which would give much traction here. I'm therefore a little skeptical that UPS could or would go after BROWN'S RECORD STORE (or DR BROWN'S CEL RAY TONIC).
But UPS can plausibly say that a brown delivery truck signifies UPS as source.
So what should be the result if:
1. FedEx painted its trucks 'UPS Brown' but left FEDEX on them.
2. FlyByNight Courier used UPS Brown trucks.
3. Your pizza place used UPS Brown trucks.
4. Your gay lover dressed up as a UPS delivery man for halloween.
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