On Monday, December 20, 2021, Steve Sereboff will lead a discussion of an older decision by the Trademark Trial and Appeal Board (TTAB) about single color trademarks, and about a more recent decision by the Court of Appeals for the Federal Circuit (CAFC) providing more guidance on its false trademark declaration jurisprudence.
In re Cook Medical ttabvue-77882876-EXA-16 concerned an application for the use of the color teal on consumable medical devices, versus an prior registration for the color blue on similar goods. The TTAB held that “blue” was broad enough to cover “teal,” so the application was refused. As predicted by Cook, later decisions show that if an application is refused in light of an overly generic color designation, the prior registration can be narrowed in a TTAB proceeding to the actual shade used by the registrant.
In Galperti v Galperti, the CAFC held, “If evidence of uses lacking secondary meaning is pertinent under Section 2(f), the evidence is pertinent to the falsity of the assertion by Galperti-Italy using the statutory language in order to meet the Section 2(f) standard. . . Use by anyone, regardless of relation to the challenger, may undercut a claim of substantially exclusive use.”
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