In re Forney Industries, Inc.
United States Court of Appeals for the Federal Circuit
955 F.3d 940 (2020)
- Written by Philip Glass, JD
Facts
Forney Industries, Inc. (Forney) (plaintiff) distributed goods featuring a color-based product-packaging mark consisting of a color gradient and a black bar but lacking a distinct peripheral border or shape. Forney applied to register this design as a trademark. The trademark examining attorney denied the application based on the absence of proof of secondary meaning, i.e., that the packaging mark served to associate the product with the manufacturer in the minds of consumers. Contending that its design possessed inherent distinctiveness, Forney appealed to the Trademark Trial and Appeal Board (board). The board affirmed the rejection of Forney’s application, holding that a color mark on packaging could not possess inherent distinctiveness absent the presence of a distinct peripheral border or shape and a showing of secondary meaning. Forney appealed the board’s decision.
Rule of Law
Issue
Holding and Reasoning (O’Malley, J.)
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