Can a company that makes towed farm equipment match colors of the John Deere tractors that pull it without infringing John Deere’s trademarks? Country music fans have all heard the song about “John Deere green.” This week Deere & Co. is seeking a judgment that John Deere green and John Deere yellow cannot be used together on towed equipment like sprayers and liquid nutrient applicators. The real crux of the problem is painting the tank yellow while the equipment is painted green. Here is a photo from FIMCO’s brand AG-Spray showing one of the sprayers in dispute:
One point that was made on cross of the first witness Brian Myers, Deere’s program director, was that Ag-Spray not John Deere on the equipment in huge letters.
Another point made on cross is that Deere uses different colored tanks:
This is a self-propelled sprayer, which was distinguished from the towed (or sometimes called trailed) sprayer of FIMCO’s Ag-Spray branded product.
Here is a John Deere branded product with yellow tanks and someone else’s white tanks behind:
Several examples of gray or stainless steel John Deere tanks were also shown.
FIMCO was not chosen to be Deere’s manufacturer of sprayers. Instead another company FAST was chosen in 2012 to produce this product for Deere:
After that, Deere started enforcing its trademarked colors of John Deere Green and Yellow and telling competitors of towed equipment like FIMCO that they could not use the colors together. It is expected that Deere will argue that it did trademark enforcement before then. Deere also argues that FIMCO could use yellow and black (instead of green) like FAST does on its FAST branded equipment. Here is an example although it may not be the exact photo used in court yesterday:
On cross, Mr. Myers admitted that the trademark registrations of Deere & Co. do not show yellow on tanks but instead show yellow as the wheel color.
The photos for this post (above) were taken from the websites of John Deere and also here, Ag Spray, and FAST and were the same or similar to the photos shown in court during Brian Myers’ testimony yesterday.
The trial will last all week. I could not stay for all of the testimony as I had to file an answer to a trademark opposition yesterday and have several trademark applications to file or to file documents in this week. I might check back in later. The trial is being tried before the judge not a jury and is open to the public.
ABOUT THE AUTHOR:
Julie Tennyson is licensed to practice law in Kentucky, Tennessee, and Georgia and is a registered patent attorney. She focuses her practice on intellectual property, employment, corporate, and litigation. Her email is firstname.lastname@example.org and her phone number is 270-534-5135. Her website is marcumtennyson.com.