Trademark Functionality Analysis is No Black Box

On July 2, 2013, in Trademarks, by Brian A. Hall

UnIntellectual Property (UnIP): Trademark for the Color Black for Flower Box

Flower delivery company, FTD, appealed to the The Trademark Trial and Appeal Board (TTAB) the USPTO Examining Attorney’s refusal to register the below mark in connection with “flowers and live cut floral arrangements.”




The TTAB affirmed the Examining Attorney’s determination that the color black was functional connection with the packaging of flowers.  In doing so, it based its decision primarily upon the fact that a competitive need exists for others in the floral industry to be able to use black for packaging of flowers.  That competitive need was supported by use of the color by other flower companies for elegant events, funerals, and Halloween, among other things.  Ultimately, Supreme Court precedent and that of the TTAB supported the Examining Attorney’s refusal to allow registration of the mark, even based upon acquired distinctiveness.

In Re Florists Transworld Delivery, Inc., 77590475, 2013 WL 2951796 (Trademark Tr. & App. Bd. Mar. 28, 2013).


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