As we enter into fall, the leaves on the trees will soon be multicolored. They are sure to be inherently distinctive, with each tree being a unique creation. It is too bad multicolored trademarks do not get the same distinction! On September 10, 2018, in In re Forney Industries, Inc., the Trademark Trial and Appeal Board (TTAB), in a precedential decision, held that a multicolored mark used on product packaging is never inherently distinctive. The TTAB further held that such marks can only be registered on a showing of acquired distinctiveness (In re Forney Industries, Inc., 2018 WL 4348337 (T.T.A.B. Sep. 10, 2018)).
Forney Industries, Inc. applied to register a color mark on the Principal Register that consisted of the colors red into yellow with a black banner located near the top as applied to packaging for the goods. Dotted lines depict placement of the mark on packaging.
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