Okay, so Christmas' red-green motif isn't actually in
jeopardy, but the use of colors (in particular, red and green) as trademarks is becoming a reoccurring legal theme.
First, it was red.
In the case of Christian
Louboutin v. Yves Saint Laurent, the Second Circuit rejected, as inconsistent with Supreme
Court precedent, a lower court's decision that a single color - red soled shoes
- could never serve as a trademark in the fashion industry.
And now, green is at issue.
Green Eco-Coating on
Telebrands Corp claims a trademark in the green color of its
Orgreenic cookware. The cookware includes pots and pans with the color green on
the inside surface. Sales of Orgreenic products through direct response and
wholesale channels have exceeded $41 million.
In 2011, Meyer Manufacturing, which sells the Earthpan
skillet, filed a declaratory judgment action against Telebrands. The Earthpan
skillet's interior, exterior and handle are all a similar light green color.
"U.S. Trademark Registration No. 3, 843,331 for the 'color
green on the inside surface of a pot or pan,' is not distinctive," Meyer's
argues, "and does not possess secondary meaning associated with a source of particular
goods or services."
Meyers points out that the color green has only recently become
associated with natural, organic, healthy, and sustainable products and services.
Prior to that time, green, as used for such products, was simply a color that manufacturers
might choose to use for aesthetic reasons.
Is the Green Mark Invalid?
On Monday, Meyers move for summary judgment, attacking the
mark's validity. Meyers' invalidity argument rests upon:
"Using green for the interior of the OrGREENic frying pan,"
Meyers argues, "is not fanciful or arbitrary. Rather, it is a direct signal that
the OrGREENic cookware is 'eco-friendly,' healthy, and a 'green.'"
Meyers notes that no other colors signal that
a product is environmentally friendly or healthy.
"Being 'green' is synonymous with being environmentally
friendly, and Telebrands may not monopolize a color that performs such a
function," Meyers says.
Telebrands has yet to respond to the motion. But in support
of its counterclaims, Telebrands alleges that the mark is non-functional, fanciful,
distinctive and well-recognized as indicating the source of origin of Telebrand
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