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By: Partner Nathan Harris
Article published in General Counsel News
In re Forney Industries, the Federal Circuit Court of Appeals reversed the refusal by the Trademark Trial & Appeal Board (TTAB) to register the color mark below, used on Forney’s product packaging for its welding and machining tools and accessories.
Forney sought to register the mark on the ground that it was inherently distinctive. In refusing registration, the TTAB held:
(1) a multi-color mark (such as the one at issue here) could never be inherently distinctive as trade dress, and
(2) color marks for product packaging cannot be inherently distinctive without a well-defined peripheral shape or border.
The Federal Circuit reversed both holdings.
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