Finding Aesthetic Functionality, TTAB Affirms Refusal To Register Copper Color For Irrigation Drip Tubes

The Board affirmed a refusal to register the color "copper" for "flexible, plastic tubes used in subsurface drip irrigation systems," finding the proposed mark to be aesthetically functional under Section 2(e)(5). Moreover, assuming that the color "copper" is not functional for the goods, the Board found that the proposed mark lacked acquired distinctiveness under Section 2(f). In re Rain Bird Corporation, Serial No. 85044106 (January 3, 2019) [not precedential] (Opinion by Judge Robert H. Coggins).

Functionality: The Board observed that a color may be a source indicator (e.g., the green-gold dry cleaning press pads in Qualitex and the pink fiberglass insulation of Owens-Corning), or it can be functional (e.g., the black outboard motors in Brunswick and the black boxes for floral arrangements in Florists' Transworld (FTD)). [Or it can be neither - ed.].