The US Patent and Trademark Office is no longer automatically providing registrants with paper registration certificates. It now provides only electronic registration certificates, though complimentary paper certificates will be provided on request for registrations when the initial applications were submitted before May 24, 2022.
For applications after that date, you can still order a paper certificate for an additional fee. If you’d like a “presentation” copy suitable for framing and bearing a gold foil seal, it’ll now cost you $25. A “certified” copy (for use in connection with legal proceedings and some filings abroad) costs $15.
Color as a Trademark
A particular color can sometimes be protected as a trademark. For example, the shade of pink used by Owens-Corning for its fiberglass insulation is a registered trademark.
It is, however, not that easy to register a color as a trademark, as shown by a case decided earlier this year, which found that the applicant Integra Biosciences Corp. had not established trademark rights in the colors used on the packaging of its disposable pipette tips.
Each size of pipette tip offered by Integra comes in a rack that is one of five pastel colors. Each of those colors is used as part of a color-coding scheme to coordinate pipettes and pipette tips to make it easy for customers to use the correctly sized tip on a pipette.
An applicant trying to register a color mark must show that the mark is “distinctive,” meaning that the color serves to identify a particular source of the product, even if customers don’t know who that source is.
Color marks used on product packaging can sometimes be “inherently distinctive.” This requires that the intrinsic nature of the mark indicates the source of the goods to a consumer. Color used on a product itself is never considered inherently distinctive.
When a mark is not inherently distinctive, the applicant must prove that the mark has acquired distinctiveness. This “secondary meaning” of a mark can be established through customer surveys and other types of market research, as well as through evidence of a long period of exclusive use, relatively high sales-volume totals, and extensive advertising.
In this case, the Trademark Trial and Appeal Board (TTAB) ruled that the product packaging was not inherently distinctive and that, despite the evidence Integra had submitted of continuous exclusive use, the colors had not acquired distinctiveness.
Finally, the TTAB found that the colors were essential to the use of the product, and because they’re functional, they can’t be protected by the trademark laws.
Amazon Brand Registry and Walmart Brand Portal
Both of these e-tail sites allow brand owners to enroll in programs to make it significantly easier to protect their intellectual property, including their trademarks.
The Walmart Brand Portal requires that your trademarks be registered with the US Patent and Trademark Office (USPTO). The Amazon Brand Registry will accept marks with applications registered or pending at the USPTO, as well as marks registered or pending in certain other specified countries.
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Please feel free to contact us if you have any questions about the above or if you need any help choosing, registering, or enforcing your trademarks.
Photo by Joanna Kosinska on Unsplash
