Don’t Use Orange Circles or ING May Sue You
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Consider yourself on notice: If you are a bank or credit union using anything resembling this orange dot…
…look out. Orange circles may be enough for ING to take you to court next.
Last Wednesday, ING filed a trademark-infringement complaint in U.S. District Court against PNC Bank over use of orange balls.
Earlier this year, PNC launced a Gen-Y program called Virtual Wallet. The Virtual Wallet website uses orange circles for its main interface.
In its complaint, ING asserts that “a significant segment of the website prominently utilizes the color orange and orange-ball designs that are confusingly similar to ING Direct’s orange ball.” ING is seeking damages of greater than three times the amount that PNC has made using the orange ball logo, including interest.
ING filed for trademark protection on its orange ball design back in November, 2000. ING’s trademark application is specifically for orange circles “that are totally or partially shaded.” Since then, orange has become the predominant color of its Web site, retail banking locations and advertisements, according to the complaint.
PNC filed trademark applications for 9 different orange circle designs back in June, and two more in August.The last one was filed August 12, 2008, one day before ING filed its lawsuit.
PNC’s most recent trademark application is for “Punch the Pig,” a creative savings game. It says the mark “consists of a stylized orange circle with a stylized white piggy bank in the center and two blue concentric circles in the center of the stylized piggy bank.”
Key Question: Is ING Direct entitled to exclusive use of orange circles – used in any capacity – within the financial industry?
What do you think?
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This article © 2012 by The Financial Brand and may not be reproduced.
I hope the NBA doesn’t offer a Visa card, or else they are in big, BIG trouble! Watch out, David Stern, there’s a new sheriff in town!
Funny.
Wow. I think I am going to trademark the red octagon.
Can’t someone else prove first-usage of the orange circle? Or does first-usage not count once a trademark has been established?
Hi Robert.
Everyone, Robert and I were partners in an ad agency in Las Vegas back in the 90s. He’s a good guy.
Here’s how the trademark thing works. You file for federal trademark registration with the USPTO. They either grant or deny your application based on how unique they deem your mark (or service, in the case of servicemarks). Then they publish the trademark “for opposition.” That date is important because it means if you go 5 years without anyone challenging (or “opposing”) your trademark, your trademark is uncontestable from then on — no one can challenge your trademark making your registration essentially invincible.
ING’s Filing Date: March 20, 2002
Published for Opposition: August 12, 2003
ING’s Registration Date: January 1, 2008
Hey, look at that: 5 years have passed since the trademark was published for opposition (August 12, which, ironically, is the same day PNC applied for its Punch the Pig trademark). Now, it doesn’t matter if anyone was using orange balls before ING. It’s too late. This trademark is now uncontestable.
Now if someone had been using orange balls before ING and had challenged the USPTO’s decision to grant the ING trademark, things might be different and financial marketers wouldn’t have to worry when they make a bullet-list in orange (just kidding).
I don’t know. i think TANG might have a case here. That ING color looks mighty familiar…