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Finding Proof of Acquired Distinctiveness Insufficient, TTAB Affirms Refusal to Register the Color Maroon for Steel Anchors

If you want to register a color mark, you'd better show up at the TTAB with some pretty darn good proof of acquired distinctiveness. Applicant General Technologies gave it a shot, claiming trademark rights in the color maroon for "maroon plastic encapsulated steel anchors for multi-strand post-tension systems" and for "maroon plastic encapsulated steel anchors for monostrand post-tension systems." But its Section 2(f) proofs failed to satisfy the "substantial" burden of proving acquired distinctiveness for a color mark. In re General Technologies, Inc., Serial Nos. 77052472 and 77052485 (July 23, 2009) [not precedential].Of course, the Supreme Court has told us that a single color cannot be an inherently distinctive mark. Applicant based its 2(f) claim on use of its alleged mark for 10 years, on the assertion that several third-parties use other colors for similar devices, and on the facts that Applicant displays the color maroon at its website and owns two Supplemental Registrations for these very same marks...continue to full post

Full post as published by The TTABlog on August 05, 2009 (boomark / email).