TMEP 1207.01(b)(xi): Color Marks

October 2017 Edition of the TMEP

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1207.01(b)(xi)    Color Marks

When the marks at issue are both color marks, the test is not whether the marks can be distinguished when subjected to a side-by-side comparison, but rather whether the marks are sufficiently similar in terms of their appearance and overall commercial impression so that confusion as to the source of the goods/services offered under the respective marks is likely to result. In re Cook Med. Tech. LLC, 105 USPQ2d 1377, 1381 (TTAB 2012). In In re Cook Med. Tech., the Board affirmed a refusal to register the color "teal" for "medical devices, namely, guiding sheaths for use in conjunction with access needles, wire guides, and dilators for providing access for diagnostic and interventional devices in vascular and non-vascular procedures," finding the mark likely to cause confusion with a registered mark for the color "blue" applied to the tip and indwelling length of catheters. Id., 105 USPQ2d at 1385. Because registrant’s "blue" mark was not limited to a particular shade of blue, it covered all shades of blue, including applicant’s "teal." Id., 105 USPQ2d at 1382. Further, the Board found that, in the context of the goods at issue, the marks were similar in color, noting that the original description of applicant’s mark identified it as the color "blue/teal," and that the goods were complementary Id., 105 USPQ2d at 1380, 82-83.