Precedential No. 24: Yellow Cheerios Box Lacks Acquired Distinctiveness, Fails To Function As A Trademark

Affirming a refusal to register the color yellow appearing on packaging for "toroidal-shaped, oat-based breakfast cereal," the TTAB found that the alleged mark lacks acquired distinctiveness and therefore fails to function as a trademark. Although Applicant General Mills submitted voluminous evidence to support its claim of acquired distinctiveness, the Board was convinced by proof of third-party use of yellow packaging for cereal products, that consumers "do not perceive the color yellow as having source significance for the goods." In re General Mills IP Holdings II, LLC, Serial No. 86757390 (August 22, 2017) [precedential] (Opinon by Judge Anthony R. Masiello).

Of course, a single color can never be inherently distinctive as a source indicator. Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 54 USPQ2d 1065, 1068 (2000) (citing Qualitex Co. v. Jacobson Prods. Co., 34 USPQ2d 1161, 1162-3 (1995). Moreover, "[b[y their nature color marks carry a