"Medisafe filed a trademark application claiming the color dark green for the surface of chloroprene examination gloves. The USPTO trademark examiner found that Medisafe's claimed mark was generic despite a declaration from Medisafe's Executive Vice President, as well as promotional literature and color advertisements within the industry. Medisafe appealed the examiner's rejection to the TTAB, which affirmed after applying a version of the two-step generic inquiry laid out by the Federal Circuit in H. Marvin Ginn v. International Association of Fire Chiefs (1986)."
"The TTAB's test for color marks, slightly altered from H. Marvin Ginn, first appeared in the Board's 2019 decision in Milwaukee Electric Tool Corp. v. Freud America. Applying the test, the TTAB first rejected Medisafe's proposed genus of gloves sold to authorized resellers, finding the relevant public to be all potential consumers of chloroprene medical examination gloves. At the second step, the TTAB found that Medisafe's claimed green color couldn't identify a sole source."
PT Medisafe applied to register dark green as a trademark for the surface of chloroprene examination gloves. The USPTO examiner deemed the claimed color generic despite company declarations and promotional materials. The TTAB affirmed, applying a modified two-step generic inquiry from H. Marvin Ginn that defines the genus broadly as all potential consumers of chloroprene medical examination gloves and then assesses whether the color primarily identifies a single source. The TTAB discounted several pieces of evidence, including a survey, and cited third-party green gloves as showing the color could not serve as sole-source identification. The Supreme Court denied review.
Read at IPWatchdog.com | Patents & Intellectual Property Law
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