Growing up with a farm in the family, I learned early on that Nothing Runs Like Deere®. As people tend to do, we named all of the tractors – after Masters of the Universe characters, of course. There was a front-loader type tractor of a brand I don’t recall named Skelator, another old tractor named Cringer, and a John Deere that we called He-Man.
John Deere, like other iconic brands, holds an elevated status among farmers and inspires a certain tribal loyalty – the kind that reminds me of Seth Godin’s quote about Harley Davidson: “Nobody gets a Suzuki tattoo.” Well, people get John Deere tattoos:
A couple things you’ll notice is that these tattoos prominently feature actual tractors, not just the famous John Deere deer logo, and they are in color: John Deere’s iconic green and yellow.
It should be no surprise that these are colors John Deere values and protects. Colors can function as trademarks, just like brand names or logos, but only if they acquire distinctiveness. Color, planted as seeds on products, packaging, in logos, and in “look-for” advertising, grows into a trademark over time as the public begins to associate the color with a source of products or services and recognize it as a mark . Once that association is made, the color becomes part of the story of the brand, and the brand owners have significant power through it.
Last month, John Deere showed just how much power it has in its color marks when it won a hard-fought court battle against FIMCO, maker of these sadly named, “Ag Spray Equipment” agricultural sprayers (the name is not surprisingly not registered as a trademark):
Here is one being pulled by a John Deere tractor. Confusing? Would you assume the tractor and the equipment come from the same source? What about a defense that farmers want their equipment to match the color of their tractor, because it is aesthetically pleasing? Is it fair to give John Deere a monopoly right on a color combination?
Perhaps even more importantly than the immediate legal victory, in the 107-page decision the district court also called John Deere’s green and yellow color combination “famous,” a meaningful label for trademarks from which John Deere may potentially harvest even greater long-term value. Under the Lanham Act, the owners of famous marks can enjoin subsequent users of similar marks that are likely to dilute distinctiveness of the famous mark “regardless … of actual or likely confusion, of competition, or of actual economic injury.” Powerful stuff indeed.
So, hey, John Deere, if you ever need a new slogan, how about “These Colors Don’t Run?”
P.S. On second thought, for a tractor, “not running” might be the wrong message 😉