Unpacking Fed. Circ. Multicolor Trade Dress Ruling

Law360 (May 11, 2020, 3:38 PM EDT) -- In the recent Forney Industries Inc. matter, the U.S. Court of Appeals for the Federal Circuit held that, despite prior U.S. Supreme Court precedent stating that "no [color] mark can ever be inherently distinctive,"[1] multicolor trade dress for the packaging of a product can be inherently distinctive.

Distinctiveness Requirement — Supreme Court Precedent

To be protectable, a trademark or service mark must be distinctive. In other words, the mark must allow relevant consumers to distinguish the source of the marked goods or services from those of competitors, even when the particular source is unknown.[2]

Distinctiveness can be either inherent or acquired....

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