It’s Not Yabba-Dabba-Delicious – TTAB Denies Color Mark for Post Fruity Pebbles!

Fruity Pebbles failed to attain a trademark for the various colors of its cereal. Scott Hervey and Jessica Marlow discuss the TTAB's decision to reject the trademark application on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: A trademark examiner refused to register a trademark for the various colors that make up the colors of Fruity Pebbles Cereal on the grounds that the proposed color mark fails to function as a trademark. The applicant, Post Foods, could not stomach the refusal, and it appealed it to the Trademark Trial and Appeal Board. On January 4, 2024, the TTAB upheld the examiner's refusal. This case exemplifies the difficulty of securing a color trademark. And there's some other takeaways, important takeaways, too. We're going to discuss this on this next installment of The Briefing by Weintraub Tobin. Welcome back to The Briefing. I'm Scott Hervey of Weintraub Tobin, and today, I'm joined by my law partner, Jessica Marlow. Jessica, welcome back to The Briefing. Jessica: Thank you. Happy to be back. Scott: So, Jessica, I know that you're a fan of fruity pebbles, right? Jessica: I am. Scott: Okay. Jessica: At all ages. Scott: Yeah, this case is right up your alley. So Post Foods applied to register a trademark for the various colors that make up the colors of Fruity Pebble Cereal. Understanding just how difficult it would be to register the color mark, the application included a declaration from the applicant's counsel supporting the two-f claim, which is a claim of acquired distinctiveness and allegations of long use, extensive advertising and, unsolicited media coverage and significant product sales. Supporting this claim of acquired distinctiveness. The examining attorney refused to register the mark because it consisted of a nondistinctive product design or nondistinctive features of a product design that are not registerable on the principal register without sufficient proof of acquired distinctiveness. And while the applicant's two-f claim and all the evidence that the applicant submitted in support of the two-f claim was an attempt of establishing acquired distinctiveness, the trademark examiner said that the section two-f claim showing was insufficient to demonstrate acquired distinctiveness. Jessica: Right. And in response to the office actions, the applicant submitted additional evidence of the mark's acquired distinctiveness, including the results of a consumer survey, long use of the mark, significant advertising expenditures and sales revenue, extensive media coverage, and customer statements. Despite all of this, the examiner found the additional evidence insufficient to show acquired distinctiveness and continued to refuse registration on the grounds that the mark failed to function as a trademark. Post appealed this refusal to the TTAB. Scott: Now, color marks are never inherently distinctive when used on products or on product designs. Where a color mark is not functional, it may be registered on the principal register if it is shown to have acquired distinctiveness. The TTAB noted that the burden of proving that a color mark has acquired distinctiveness is substantial there are six factors that are considered in determining whether a color mark has acquired distinctiveness, and those six factors are the association of the trade dress with a particular source by actual purchasers, and usually that's measured by customer surveys, the length, degree, and exclusivity of use the amount and manner of advertising the amount of sales and the number of customers, intentional copying and unsolicited media coverage of the product embodying the mark. No single factor is determinative, and all six factors are to be weighed together in determining the existence of secondary meaning. Jessica: In response to the evidence submitted by the applicant, which included product history and length of us...