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The Color Pink Can Be Functional

Posted by James Juo | Dec 12, 2022 | 0 Comments

A classic example of a color as a trademark is pink for fiberglass insulation. In re Owens-Corning Fiberglas Corp, 774 F.2d 1116, 1123 (Fed. Cir. 1985) (finding the color pink “has no relationship to production of fibrous glass insulation” and “serves the classical trademark function of indicating the origin of the goods”); see also Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 112 S. Ct. 2753, 120 L. Ed. 2d 615 (1992); In re Forney Industries, Inc., 955 F. 3d 940 (Fed. Cir. 2020) (noting the inquiry focuses on the “character of the color design”).

Where the color is the result of a patented process, however, such a utilitarian purpose could be fatal to that color being a trademark as a matter of law.

Pink Hip Joint Implants

Petitions to cancel trademark registrations for the color pink in “hip joint implants” on the Supplemental Register, on the ground of Section 2(e)(5) functionality, were at issue in C5 Medical Werks, LLC v. CeramTec GmbH, Cancellation Nos. 92058781 and 92058796 (TTAB Dec. 6, 2022).

The hip joint implants were covered by patents that disclosed adding chromium oxide (chromia) to zirconia-toughened-alumina (“ZTA”) ceramic hip replacement materials to improve its toughness, hardness, stability and suppression of brittleness. See Kohler Co. v. Honda Giken Kogyo K.K., 125 USPQ2d 1468, 1478 (TTAB 2017) (“analysis requires us to do what we must do in considering Applicant's issued United States patents to determine whether the claims and disclosures in the patent show the utilitarian advantages of the design sought to be registered as a trademark,” citing In re Becton, Dickinson and Co., 675 F.3d 1368, 102 USPQ2d 1372, 1377 (Fed. Cir. 2012)). The added chromia imparts a pink color to the ceramic material.

There also was evidence of advertising that touted the utilitarian advantages of adding chromium. See Kistner Concrete Prods., Inc. v. Contech Arch Techs., Inc., 97 USPQ2d 1912, 1924 (TTAB 2011) (“If a seller advertises the utilitarian advantages of a particular feature of its product, this constitutes strong evidence of functionality.”).

In sum, we find that the color pink (caused by the addition of chromia) of the compound used to make ceramic hip implant components, as shown in Respondent's trademark registrations, is functional based on utilitarian considerations.

Finding the color pink here to be functional and therefore unregistrable, the TTAB granted the petitions for cancellation.

Thomas P. Howard, LLC is experienced in trademark matters nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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