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In re Forney Could Herald a Brighter Future for Color Marks

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.

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