Federal Circuit Throws Shade on TTAB’s Treatment of Color Trademarks

The Temple 10-Q

Pink insulation, green tractors, robins-egg blue jewelry boxes—they all have something in common: recognizable colors that many associate with products. But can colors be registered as trademarks and, if so, when? On April 8, 2020, the United States Court of Appeals for the Federal Circuit overruled the United States Patent and Trademark Office’s Trademark Trial and Appeal Board (“TTAB”) and, in doing so, provided welcome guidance for trademark owners and practitioners on the nuanced area of protecting trademarks consisting solely of colors.

The Court’s Holding

In In re Forney Industries, Inc., 955 F.3d 940 (Fed. Cir. 2020), the Federal Circuit considered whether color on product packaging could be inherently distinctive trade dress, warranting trademark protection. The Federal Circuit’s answer was “yes:” multi-color marks on product packaging can be inherently distinctive and may be entitled to trademark protection. Id. at 945.

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“Federal Circuit Throws Shade on TTAB’s Treatment of Color Trademarks,” by David M. Perry and Jillian M. Taylor was published in The Temple 10-Q, Temple University’s Business Law Magazine, on August 31, 2020.

This article is modified from the original publication, which was published as a Blank Rome Intellectual Property & Technology Client Advisory in April 2020.