In 1987, Kenneth Parks, a 23-year-old Canadian, drove 15 miles to the home of his mother and father-in-law. Upon arrival, he stabbed both with a kitchen knife, killing his mother-in-law and severely injuring his father-in-law. With an immediate confession from Parks, this seems like an easy case. The problem? Kenneth Parks was sleepwalking at the time of the crime.
Parks claimed he did not remember any of his actions and that there was no reasonable motive for the murder. This leaves the court to determine whether sleepwalking constitutes non-insane automatism. Automatism is the performance of actions without conscious thought or intention. In Canada, automatism works as a defense and results in absolute acquittal. Once the defendant raises automatism as a defense, the burden is on the court to show that the acts were voluntary. R v. Parks, 2 S.C.R. 871 (1992).
As in Canada, automatism is a defense in the United States. Automatism in the U.S. is more commonly referred to as the Unconsciousness Defense that occurs when the defendant was unconscious while the offense occurred.It is a complete defense to all crimes, including the strict liability offenses. State v. Hinkle, 200 W.Va. 280, 489 S.E.2d 257 (1996). There are two exceptions: felony murder and “when the crime charged can be committed recklessly or negligently and the defendant, knowing of his tendency to black out, put himself in a position where a manifestation of this tendency would be especially dangerous”. N.C.P.I. - Crim. 302.10 n. 1.
Non-insane automatism is where the automatism is caused by external factors, is not continual and is not linked to any disease of the mind. Id. Parks did not have any mental conditions and had no past experiences with sleepwalking. He had, however, been working long hours and getting little to no sleep. Ultimately, Parks was acquitted both at trial and on appeal.
Should unconsciousness negate the crime committed?
Do you believe there should have been consequences for Kenneth Parks?
A handful of companies have pushed the boundaries of intellectual property law by laying claim to individual colors.
On a summer day in 2019, Daniel Schreiber opened his mailbox to find a threatening letter from one of the world’s largest telecom companies.
In the letter, Deutsche Telekom AG (the parent company of T-Mobile) accused Schreiber’s small insurance startup, Lemonade, of trademark infringement. Schreiber was confused: He hadn’t used T-Mobile’s name. He hadn’t appropriated the company’s logo or tagline. Hell, he wasn’t even in the cell phone business.
But as he read on, he realized his “crime” was using the colormagenta.
In recent years, companies like T-Mobile have achieved something once thought to be legally impossible: They’ve successfully trademarked individual colors.
When a color becomes synonymous with a brand — thinkrobin egg bluejewelry boxes,browndelivery trucks, ororangescissors — a company can claim a certain form of “ownership” over it.
But how is it possible for a single corporation to call dibs on a color? And what effect does this exclusivity have on its competitors?
A colorful history
Under the umbrella of intellectual property law, the 3 most common applications are the trademark, the copyright, and the patent.
While corporations routinely file all of these, they use the trademark to (quite liberally) protect anything integral to their brand. Underlegal doctrine, this might be “any word, name, symbol, or device [used to] identify and distinguish” a company’s good or service from its competitors.
When a trademark is granted, it gives a company the exclusive right to use that intellectual property in its respective industries.
Note: Though trademarks are indefinite, they still need to be renewed every 10 years. (Zachary Crockett / The Hustle)
For many years, a color did not, by itself, qualify as a trademark.
Though companies had successfully trademarked combinations of colors (e.g., Campbell’s soup labels), the US Patent and Trademark Office shot down attempts to trademark a single color. John Deere, for example, would not be permitted to lay claim to the colorgreenin the farm equipment industry.
Scholars maintained several arguments against issuing single color trademarks:
Color depletion theory: Only around1,867solid Pantone colors exist; if brands all claim a color, we’ll eventually run out.
Shade confusion theory:It would be hard for the consumer to determine the difference between slight shade variations of colors claimed by brands.
But everything changed when this stuff came along:
Owens-Corning fiberglass insulation in its trademark pink-dyed hue (Pixabay)
That, dear readers, is a piece of fiberglass insulation (the stuff that goes behind our walls) from a company called Owens-Corning.
In the late1950s, Owens-Corning was facing steep competition from other fiberglass insulation companies. At the time, all products were the same “naturallytan” hue; to distinguish itself, Owens-Corning decided to infuse their product with dye.
For the next 30 years, the company used its uniquepinkinsulation as a marketing tool: It adopted the slogan “think pink,” used the Pink Panther as a mascot, and spenttens of millions of dollarsadvertising the color.
In1985, after a 5-year legal battle, Owens-Corning became the first company in American history to successfully trademark a color.
Ten years later, a second company, Qualitex, went all the way to theSupreme Courtto defend its right to trademark its signaturegreen-golddry cleaning pads. The court ruled that color could, indeed, serve toidentifya brand — and in doing so, opened up the floodgates for companies to file their own color trademarks.
What does it take to trademark a color?
In the decades since that Supreme Court case, a number of companies have successfully trademarked single colors.
Tiffany & Co. trademarked its famousbluein 1998 — the same year UPS trademarked its “Pullman Brown.” 3M secured its signaturecanary yellowcolor for its Post-it notes, Deutsche Telekom AG protected T-Mobile’s famousmagenta, and Fiskars has one fororangescissor handles.
There are even a few you wouldn’t expect: The Wiffle Ball, Inc. has a trademark onyellowfor use in bats, and the estate of the late musician Prince currently has onependingfor the colorpurple.
These trademarks aren’t exclusive to businesses, either. The University of Texas at Austin (Pantone 159) and The University of North Carolina at Chapel Hill (Pantone 542) both have protections on their school colors.
A few of these companies, like Cadbury, have since lost their color trademark in legal disputes (Zachary Crockett / The Hustle)
Plenty of brands trademark certain colors that might appear in conjunction with a logo (think, for instance, McDonald’sredandyellow, or Facebook’sblue). But these companies have done something different and far rarer: They have trademarked literal swatches of color.
“Usually a company does this when its business model relies, to some extent, on a particular color,” says Jeffrey Samuels, a professor emeritus at The University of Akron School of Law. “It will trademark a color to prevent other companies from using it.”
An important distinction, adds Samuels, is that a company with a color trademark only “owns” the color in connection to particular goods or services.
Take, for instance, the purple trademark from Prince’s estate, Paisley Park Enterprises. The trademarked image is the color purple alone — no words, no logos, no other form of branding. If granted, it will give them a claim to the colorpurplefor use in live music venues. Purple alone, they claim, is enough to ID their brand.
A trademark filed by Paisley Park Enterprises seeks to secure a shade of purple (Pantone color “Love Symbol #2”) for use in musical performance (Justia)
To successfully secure such a trademark, a firm mustprovethat a single color:
Achieves “secondary meaning” (distinguishes a product from competitors and identifies the company as the definitive source of the product)
Doesn’t put competitors at a disadvantage by affecting cost or quality
Doesn’t serve a functionalpurpose
This last piece, says IP lawyer Robert Zelnick, means that “a color really has to be quite arbitrary” to be trademarked: It can’t be essential to the production of the product or serve any utilitarian purpose.
Sometimes, proving all of his can be extremely challenging.
General Mills, for instance, hastwice failedto secure atrademarkonyellowfor its Cheerios box, on the grounds that the color isn’t synonymous with the brand since too many other cereal companies use it in their branding.
Pepto-Bismol’s attempts totrademarkpinkwere thwarted when a court deemed that the “therapeutic” effect the color had on customers was “functional.”
The color wars
As the CEO of Lemonade learned, companies thataregranted color trademarks often go to great lengths to enforce them in court — and competitors often challenge their right to monopolize certain hues.
TOP: T-Mobile’s ex-CEO John Legere went above and beyond to embrace the brand’s magenta hue (Twitter); BOTTOM: A diagram of colors from the T-Mobile/Lemonade incident shows the variance in colors that brands claim to “own”
Over the years, these controversial trademarks have resulted in dozens of lawsuits relating to color “ownership:”
In 2002,Mattelbrought suit against MCA Records for, among other things, allowing the band Aqua to use its trademarkedpinkcolor on its album cover for the single, “Barbie Girl.” The judge famously advised both parties to “chill.”
In 2010,Hersheysued Mars for usingorangeon the packaging of a peanut butter candy bar. The suit was later dropped.
In 2011,Louboutinaccused Yves Saint Laurent of infringing on its trademarkredshoe soles and won.
In 2015, toolmakerDeWaltwon a $54m judgment against a competitor that copied itsblackandyellowcolors, though it was later tossed out on appeal.
But one company has beenparticularlyprotective of its color trademark.
T-Mobile’s parent company, Deutsche Telekom AG, has spent at least 12 years attempting to prevent competitors — some large, some small — from usingmagenta.
Though its trademark covers only a specific variation of the color (Pantone Rhodamine Red U), the company has expanded its definition of magenta to encompass a variety of surrounding hues. Since Deutsche Telekom has its hands in so many projects, it has also been able to defend its trademark in industries outside of telecommunications,rangingfrom fashion to healthcare.
In 2008, it went after the rival European wireless carrierTelia. A few months later, it demanded that the tech blogEngadgetdrop magenta from its mobile logo. In 2014, a judgeruledthat AT&T subsidiary Aio Wireless couldn’t usemagentabecause it would confuse T-Mobile customers.
A letter sent by T-Mobile’s parent company to Engadget, demanding that the blog stop using the color magenta in its logo (Engadget)
Its latest victim, Lemonade, has complied with T-Mobile’s demand by changing the color of its marketing materials in Germany, where Deutsche Telekom AG is based. The company has alsofileda motion in Europe to “invalidate Deutsche Telekom’smagentatrademark.”
Making changes like this can be costly — especially for bigger firms that spend tens of millions of dollars on marketing and branding strategies.
But legal fees can also rack up for the companies that constantly trawl for color trademark violations, begging a question:
Is trademarking a color worth all the effort?
When a company files a trademark in black and white — say a simple logo — the trademark is actually protected inallcolor variations by default. Nobody can, say, take the McDonald’sredandyellowlogo, make itpurpleandgreen, and claim it as his own.
So, why would a brand go through all the trouble of trademarking a color when they likely already have so many other protections?
“You only see brands do this when the color is critical to the brand, or sales, or the way the product is marketed,” says Zelnick, the IP lawyer.
Across all trademarks (including logos), blue is the color of choice (Zachary Crockett / The Hustle)
Most marketers are aware of the effect color has on consumer behavior. Surveys and studies have shown that:
62%-90%of a consumer’s initial judgment of a product is based on color.
52%of consumers say the color of packaging is an indicator of quality.
Welcome back and welcome new students! After a very hot summer, you can now cool down in the AC (while also learning the law 😉).
If you are new, this blog is a place to discuss legal trends, events, and advice for law students. My name is Taylor Mace - a 3L - and I am your Editor in Chief. Any students or professors that would like to write for the blog can contact me via e-mail at taylor.mace@msl.edu.
I would like to give a big welcome to all the 1L students starting this week. Law school may seem daunting in the beginning, but there are so many fun and rewarding days ahead of you! Professors and students, alike, are available to help you with all questions.
Here are some important resources as you start your law school journey:
SBA President - Bradley Nestor bradley.nestor@msl.edu
IT/TWEN Questions (and a WEALTH of other knowledge) -
Dan Harayda harayda@mslaw.edu | Mick Coyne mick@mslaw.edu
Tips from a 3L:
It's never too early to start asking questions. Ask the writing lab, advisor, or senior students to review your case briefs. Figure out how to use TWEN and Examsoft. These will be crucial for all of your classes.
Meet with your advisor to plan out your 3 (or 4) years. This may change, but it is good to see how you will plan out your 90 credits.
Take summer courses (especially UCC courses).
Commercial study materials are great, but use them to supplement your own outlines and case briefs.
Participate in class and answer as many of the professor's questions as you can. If you are right, great! If you are wrong, you will never forget the right answer.
Whether you are going on vacation, studying for the bar, or taking a class, I hope everyone at MSL has a great summer break!
This will be the last blog post of the school year, but I will return in the Fall. If you would like to write for the blog or have suggestions for future posts, please comment below or e-mail taylor.mace@msl.edu.
In 2017, the Supreme Court held that a law prohibiting trademarks that disparage any person living or dead was unconstitutional because it offended the First Amendment principle that speech may not be banned on the ground that it expresses ideas that offend. Matal v. Tam, 137 S. Ct. 1744 (2017).
Simon Tam, the lead singer of a band, chose a band name that had the purpose of reclaiming a derogatory term used against people of Asian descent. Id. When Tam wanted federal registration of the band name, the Patent and Trademark Office denied the application under the Lanham Act. 15 U.S.C. §1051 (1946). For reference, trademarks are identifying marks that people can easily identify as belonging to a product or service. The office claimed the Act prohibited the registration of trademarks that may “disparage or bring into contempt or disrepute any persons, living or dead.” Id.
The main issue in this case was whether the disparagement clause was facially unconstitutional under the First Amendment’s Free Speech Clause. The court held that it was. Their reasoning was that trademarks are private speech, not government. The court further explained that the Act violated the Free Speech Clause of the First Amendment because it violated the principle that speech may not be banned on the ground that it expresses ideas that offend.
Do you think this reasoning is too broad or do you agree with the Supreme Court decision?
Law students are notoriously hard workers. We feel as though we are wasting valuable time if we aren’t outlining, case-briefing, or going over past exams. This is especially true as final exams are approaching. The truth is, though, research shows that taking breaks from studying to refresh your brain and body can increase energy, productivity, and the ability to focus (health.cornell.edu). It can even improve your memory (Id). Students should find activities to give their mind a break and allow your body to zone out. HINT: Social media scrolling doesn’t count! Your breaks should be purposeful and not merely distractions.
Here are some ideas for purposeful study breaks:
Go for a walk or hike: Check out AllTrails for paths and hike information near school or your home.
Meditate: There are plenty of guided meditation resources available on YouTube, as well as free meditation apps.
Take a 20-minute nap: Name one law student who doesn’t need more sleep!
Take a shower: Warm water can ease tensed muscles and rejuvenate your energy.
Stretch: This can be yoga or just standing up to touch your toes.
Call a friend or family member: Just remember not to talk about school!
Cook or Bake: This is a guaranteed distraction because you have to follow a recipe to get the dish just right. No thinking about Property during this one!
Creative Crafts: Draw, paint, scrapbook, or even start making lanyard bracelets like you used to in middle school (yes, I started doing this last semester!)
These odd laws are still in effect in Massachusetts. Have you broken any lately?
It is illegal to give beer to hospital patients. M.G.L. c. 270 §5.
Hunting on Sundays is prohibited. M.G.L. c. 131 §57.
Spitting on a public sidewalk shall be punished by a fine. M.G.L. c. 270 §14.
It is illegal to frighten a pigeon. M.G.L. c. 266 §132.
Defacing a milk carton is punishable by a fine. M.G.L. c. 266 §128.
If you are over 16 years old, you can be fined for yelling any profane or obscene language at an official or participant in a sporting event! M.G.L. c. 272 §36A.
It is a punishable offense to willfully disturb people in a public library. M.G.L. c. 272 §41.
It is illegal to sell fewer than 24 ducklings at a time before May 1. M.G.L. c. 272 §80D.
Reproaching Jesus Christ or the Holy Ghost can land you in jail. M.G.L. c. 272 §36.
Targets at shooting ranges cannot resemble a human being. M.G.L. c. 140 §131.
These silly laws haven’t gone unnoticed. “An Act Relative to Archaic Laws”, a Bill Senator William N. Brownsberger has brought to present before the senate, will get rid of laws number 3, 4, 6, and 9 if passed. 2021 MA S.B. 930 (NS). There are 23 other proposed archaic laws in this bill, though none as funny as these! Head to Westlaw to read the full Bill.
