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ARTICLE · 23 APRIL 2020

Federal Circuit Issues Precedential Opinion Finding Colors In Product Packaging Can Be Inherently Distinctive

Frankfurt Kurnit Klein & Selz PC
Frankfurt Kurnit Klein & Selz PC
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Frankfurt Kurnit Klein & Selz PC

Frankfurt Kurnit Klein & Selz PC

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I recall shopping for my mother in my youth, and hearing her say over the phone "it's the one in the [insert color] package".

United StatesIntellectual Property
Kimberly Maynard
Kimberly Maynard
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I recall shopping for my mother in my youth, and hearing her say over the phone "it's the one in the [insert color] package".  My mother, who sews and crafts (I do not), knew that I paid little attention to her favorite brand of needles or paint and that describing the color of the packaging would exponentially increase the likelihood that I could find her preferred brand. 

 Perhaps recognizing this aspect of how consumers shop, Forney Industries filed an application with the U.S. Trademark Office to register the multi-colored trade dress in the packaging it uses for its welding and machining tools and accessories ("Forney Trade Dress"). 

According to the description Forney provided to the Trademark Office, "[t]he mark consists [of] the colors red into yellow with a black banner located near the top as applied to packaging for the goods. The dotted lines merely depict placement of the mark on the packing backer card."  Examples of Forney's use of the mark on

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This post first appeared in Frankfurt Kurnit's Focus on the Data blog (www.focusonthedata.com). It provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

Originally published by the New York Legal Ethics Reporter

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

www.fkks.com

This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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