TTAB: Black Color Mark For Flower Boxes Won’t Fly

In a decision combining the hot trademark topics of color marks and aesthetic functionality, the Trademark Trial and Appeal Board (TTAB or Board) upheld an examiner's refusal of registration for a single-color mark (black) for boxes for "flowers and live cut floral arrangements." In re Florists' Transworld Delivery, Inc., Serial No. 77590475 (T.T.A.B. Mar. 28, 2013) (precedential).

Florists' Transworld Delivery, Inc. filed an intent-to-use application to register the mark on October 10, 2008. The applicant subsequently filed an amendment to claim first use as of December 8, 2008, and to claim that the color had acquired distinctiveness as a result of its extensive use and promotion. The examiner refused registration on two bases: (1) that the mark was merely ornamental and would not be perceived as a trademark and (2) that the applicant had not proven acquired distinctiveness.