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Prof. Farley in Patently-O Blog:  The Federal Circuit Devises a New Rule for Color Marks

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Forney writes in its application "[t]he mark consists of a solid black stripe at the top. Below the solid black stripe is the color yellow which fades into the color red. These colors are located on the packaging and or labels."

April 10, 2020

Trademark law professor and PIJIP Faculty Director Christine Farley has a guest post published in the Patently-O blog about Forney Industries' new color mark.

She writes: 

"The Court of Appeals for the Federal Circuit has held that color marks on product packaging can be inherently distinctive. On April 8, 2020, the court issued its opinion in In re: Forney Industries, Inc. It stated that 'a distinct color-based product packaging mark can indicate the source of the goods to a consumer, and, therefore, can be inherently distinctive'.

"Leaving aside the circularity of that statement—if it’s distinct it can be distinctive?—this holding lowers the bar for the acquisition of exclusive rights over colors. For the first time, color marks are instantly protectable (when used in commerce as a mark) and need not wait until they achieve secondary meaning, so long as they are used on packaging."

The full post on the Patently-O blog is here.