August '22

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3 2 G R A P H I C S P R O A U G U S T 2 0 2 2 G R A P H I C S - P R O. C O M If a color passes all these tests, then it is eligible for trade dress. Team colors generally have aced the Louboutin test. To make this all a little more confusing and complicated, the case law in this area keeps evolving. In April of 2020, the Federal Circuit Court overturned a decision made by the Trademark Trial and Appeal Board which stated that a color mark cannot be inher- ently distinctive. A color mark can be obtained when a color 1) identifies or distinguishes a particular good or service, 2) does not have to do with how a product functions, and 3) has a secondary meaning and has acquired distinctiveness in the mind of consum- ers. e Trademark Trial and Appeal Board held that a color mark can't be inherently distinctive if it did not appear within a "well defined peripheral shape or border." e Federal Circuit Court, in the case In Re: Forney Indus. Inc. determined that the TTAB was incorrect. What this means is that more companies and organiza- tions may be going for color mark protection and that more single colors may be trademarked in the future. WHAT IT MEANS FOR SHOPS All this case law and theory can be interesting, but what, ulti- mately, does this mean for shops who offer team apparel? e first takeaway from this information is that companies invest a lot of time and effort into creating their images, and they are equally willing to spend time, effort, and money on protecting what they've built. Owners of smaller shops may think they're small enough to escape notice, or that whatever money they make will be so insignificant that a large company or organization wouldn't waste time coming after them, but that's often not the case. Owens-Corning spent five years pursing the trademark on pink insulation, and probably tons of effort and money, but given what they'd spent to create There's no line you can walk where you trade just enough on a team's trade dress to get team fans to buy your products but are different enough to avoid the team suing your shop for infringement. So be sure to express that creativity. It's wise to do your research before you venture into anything related to team colors.

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