Trademarks consisting solely of a color applied to products or their packaging have been protectable under U.S. law for decades—if they meet a heightened standard for protection. Since the U.S. Supreme Court decisions in Qualitex Co. v. Jacobson Products Co. and Wal-Mart Stores, Inc. v. Samara Brothers, Inc., an applicant for a color mark has been required to prove that the color actually serves as an indicator of source in the minds of consumers by showing that the mark has acquired distinctiveness (otherwise known as secondary meaning). Yet that longstanding requirement no longer applies to all color marks, after a new decision by the Federal Circuit in In re Forney, which opens the door for the first time to certain color marks gaining protection as inherently distinctive.
Recent Posts
- Recentive Rehearing Petition Challenges CAFC’s Broad Section 101 Exclusion of Machine Learning Inventions
- Other Barks & Bites for Friday, June 20: Advocate General Tells CJEU to Affirm €4 Billion Antitrust Fine Against Google; Recentive Challenges Section 101 Invalidation of Machine Learning Claims
- Stewart Expands on ‘Settled Expectations’ Criteria in Interim Discretionary Denial Process
- Mediocre Results so Far for Deferred Subject Matter Eligibility Response Pilot
- European Patent Organization: Responses from ChatGPT Do Not Represent the “Understanding of a Skilled Person”