The start-up Lemonade from the US has applied to the EU Intellectual Property Office for the invalidation of Deutsche Telekom's "Magenta" brand. At the same time, the German Patent and Trademark Office has filed a motion to revoke the Group's claim to the magenta ink in the insurance sector. Both entries are available to SPIEGEL.
Deutsche Telekom is at the heart of its brand identity. The corporation had the pink tone protected by the German Patent Office in 1995: as a "colorless color mark". Since then, Deutsche Telekom has rigorously opposed any other companies that use magenta as a color. Because it's so easy to recognize, experts estimate the value of magenta worth billions. The Telekom has not responded to repeated requests from the SPIEGEL to the case.
Against Lemonade Telekom has been running a lawsuit since last summer. The US insurer has been operating in Magenta since its inception in 2015. In mid-June, the startup of the Israeli founders Daniel Schreiber and Shai-Wininger started his business operations in Germany - in the same color. The reaction followed promptly. On July 23, the Hamburg Regional Court issued a preliminary injunction from Deutsche Telekom. This requires Lemonade to remove the color pink from all their assets.
"It sounded like a joke"
"At first I laughed about it, it sounded like a joke," says Schreiber in an interview with SPIEGEL. "We are in no way in competition with this company." Lemonade has followed the injunction: in Germany, the start-up now advertises with a red tone instead of magenta.
At the same time, however, Lemonade challenges the exclusive claim of the Bonn-based company to this color. It could not be that Deutsche Telekom prohibits the use of magenta to other companies across Europe beyond their own industry, says Schreiber. "Telekom does not even have an insurance license."
After privatization, the former German state-owned company has aligned its entire corporate design to this signal color: from letterheads via the website and product names to the last remaining phone booths. Also the professional cyclists around Jan Ullrich and Erik Zabel rode in magenta-colored jerseys of their former main sponsor. In Austria, the group now only appears to customers under the name "Magenta".
AFP
The logo of Deutsche Telekom
For companies, protected color brands such as the Milka-Lila, the Nivea-Blau or the Sparkassen-Rot can be worth billions. After all, consumers immediately recognize this brand, even if the product is not even visible. Again and again there are legal disputes about such signal colors.
Deutsche Telekom celebrated its big victory in 2003 in the Federal Court of Justice. The judges banned the competitor Mobilcom and thus de facto all other companies in the telecom industry, the use of magenta due to likelihood of confusion. Mobilcom had previously advertised with large format ads in this color for themselves.
It is nothing new that the telecom also alien and non-competitors warned because of their magenta performances or efforts for injunctive relief. Among other things, it hit a tech blog from the US, a Dutch company that creates bills or a British software house.
"Natural resource that is available to all people"
"These are bullying tactics," says Lemonade boss Schreiber. "The German Telekom did not invent Magenta", each color printer has this color as a basic tone. "It is a natural resource that is available to all people." And in the insurance business, no vendor will be as connected with magenta as Lemonade.
Schreiber feels confirmed by a judgment of the European Court of Justice on the chocolate bar "Kitkat". Its manufacturer Nestlé had the four-finger shape of the bolt at the EU Intellectual Property Office protected by trademark. However, following a lawsuit by competitor Mondelez, the judges ruled that Nestlé was not allowed to claim the four finger form on its own. Finally, there is no evidence that the form of consumers is recognized as a separate brand in all the relevant European countries.
This could be similar to the Telekom Magenta. German users of telecommunications services are likely to associate this color with Deutsche Telekom. By contrast, in other European countries and other product categories this is far from clear.
The lawyer of Lemonade also argues against the EU Intellectual Property Office in Alicante. Even if Telekom had "demonstrated a distinctive character acquired through use for Germany, [...] the EU trade mark would not have been registered at the same time", he writes in his application. Finally, Telekom has not demonstrated that magenta is understood by consumers throughout the EU as an indication of their company's services. Therefore, the color mark must be declared void.
The application to the EU Office was received on 16 October; the German Patent Office on 10 September. Both procedures are expected to take months.
