Court rejects Orange’s exclusive right to use the color orange

The Spanish Supreme Court has ruled that France Telecom does not have the exclusive right to use the square orange icon of its cellphone brand Orange.

France Telecom had patented its brand’s icon in Spain but rival mobile firm Jazztel, which also uses the color orange in its logo, filed a suit against the French firm’s claim to exclusivity.

In its ruling made public on Monday, the court ruled that the color orange that Orange “claims as a distinctive exclusive sign of its products is nothing other than one of the most common in the market,” and therefore, “should be open to the use of all economic operators.” It said it was “in the general interest” not to restrict the availability of colors to other operators offering the same products or service.

Orange cited a study showing that 49 percent recognized the logo

The court also ruled that the fact that Orange uses the color orange within a square does not change the situation of exclusivity because the shape is as common as the color.

Jazztel and Orange’s legal battle dates back to 2009 and the Supreme Court only reached its judgment in December of last year. Jazztel’s lawyers had argued that in Orange’s case: “The color orange is represented in the most trivial, insignificant, banal, simple, rudimentary, primary, basic, elemental shape imaginable to the human intellect: that of a simple two-dimensional square, without contours, borders, texture relief, with perspective, without any ornamentation.”

In its defense, Orange cited a market study carried out in the summer of 2008 on the level of recognition of its logo on the part of Spanish consumers. The study conducted on a sample of a 1,000 people found that 49 percent of those questioned recognized the logo and that of these 80 percent associated it with Orange.

However, the Supreme Court argued that the results of the study showed the opposite of what Orange claimed. “The outcome highlights that, contrary to the argument made by the plaintiff, that the identification of the average consumer of the concrete brand in question is rather weak, or at least not with the required strength.”

The court also rejected the significance of the fact that the Orange brand logo had been successfully patented in France. It pointed out that the General Court of Justice of the European Union had upheld the rejection by the Office for Harmonization of the Interior Market of a square with a green background as sufficiently distinctive as to merit a patent.