Certain Electric Power Tools, Battery Cartridges, and ... - USITC

complainants' personnel and their expert witness are somewhat contradictoryin connection with the listed design features. (FF 142-59).It is necessary for complainants to established that their claimed markshave attained common law significance. To do so, they must show that: (1)they have a right to use the alleged marks; (2) the marks are primarilynon-functional; (3) the marks are either inherently distinctive or haveacquired secondary meaning; and (4) the marks have not become generic.le G-, Inv. No. 337-TA-247, at 7, 2 U.S.P.Q. F.2d 1889(1987) ("Sickle Guards "1; Certain Vertical tl- , Inv. No. 337-TA-133 at 8-9 (1984) ' 11); Certain Vacuum Bottles , Inv. No.337-TA-108, at 5 (1982) ("ybEuum Bottu").A. B;.isbt to. .A person claiming a mark must establish that he has e right to identifyhis product by the mark.Prior use by another without abandonment may barthis right. Certain Cube P a , Inv. No. 337-TA-112, at 7 (19831, (I@--I*).However, in order for the prior use to constitute a bar, suchprior use must confer trademark rights on the senior user. & at 7-8.In this investigation the parties do not contend that complainants do nothave the right to use the designs and color which they claim as theirmarks.Nor has any evidence been introduced to prove otherwise. There i sevidence that Bosch, a competitor of complainants, has been selling bluetools in the United States since the early 1960'3, prior to Hakita's salesof blue tools in this country. (FF 165, 166). However, neither Bosch norany other company has alleged that it has established secondary meaning inthe color blue in connection with power tools.As such, the record200