TTAB Overstepped While Nixing Color Trademark, Court Says
Written April 17, 2020
The US Court of Appeals for the Federal Circuit on April 8, 2020, held that the Trademark Trial and Appeal Board (TTAB) erred in ruling that an undefined color trademark on packaging can’t be distinctive enough for registration unless consumers already recognize it as an indicator of product source. In Re: Forney Industries, Inc., Fed. Cir., No. 19-1073, Opinion 4/8/20.
Forney Industries Inc., which sells accessories and tools for welding and machining, applied to register its “product packaging trade dress” in 2014. But an examiner, and later the TTAB, decided the multi-color mark couldn’t be inherently distinctive. The TTAB added, citing two Supreme Court decision, that packaging marks using color without defined borders or shape also can’t be inherently distinctive.
The Federal Circuit found that the board’s decision overstated Supreme Court precedent.