Wednesday, March 28, 2012
"Dear Scotts Miracle Gro: Thank you for not killing me."
Dear Rich: We're designing a label for a new environmentally-friendly solvent/stain remover that we plan to launch. We're fine with the name of the product but we're concerned about the use of colors on the labels. Some of our team are afraid to use colors that are used by other companies because we've heard about lawsuits. Do we need to worry? Worry? We'd prefer that you saved your worrying for things like whether your bird feed contains poison (and the company that sold it knew about it). But yes, you should be diligent about avoiding the colors or trade dress of well known competing brands. What's the difference between colors and trade dress? This previous blog entry explains most of the important details. It's true that some companies use their color scheme as a means to pressure the small fry (hey, there's that company again). At the same time, a savvy media response may help speed resolution of such disputes. But, in terms of liability, you'll really only have to be concerned about color if you're stepping on the same hues (not just the same colors) or if you're matching the overall appearance of the competing product. On the other hand, some colors serve a function and are more difficult to monopolize -- for example, green as used on environmentally friendly products. (Or green as when used on medical marijuana -- hey these guys are everywhere.)