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In early April, the US Court of Appeals for the Federal Circuit handed a small but significant victory to trademark owners in a case involving colour marks for product packaging. Andrea Anderson of Holland & Hart reports.
A “double bind” is an apt way to describe the challenges faced by brand owners seeking to establish rights in the colour scheme of their packaging when launching a new product. For the most part, the US Patent and Trademark Office (USPTO) has refused to register such asserted marks absent a showing of acquired distinctiveness (sometimes called “secondary meaning”).
However, brand owners can’t establish acquired distinctiveness until after their product becomes commercially successful and well-recognised. And by that time, the packaging colour scheme may have been so copied and knocked-off that the brand owner cannot establish the “substantially exclusive use” also necessary for acquired distinctiveness.
As a practical matter, this “double bind” has precluded federal trademark registration for many packaging colour marks—until now.
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colour trademarks, packaging, USPTO, colours, Forney Industries, Andrea Anderson, Holland & Hart, brand owners,