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

indicates that complainants are entitled to use the designs, color anddesign/color combinations which they claim as their marks.* .B. Distzt ivenes sAn inherently distinctive design is one which is so distinctive that itsdistinctiveness is obvious at the time of adoption and first use. CertmCo 9 v.. .cal Mac-, 223 U.S.P.Q. 332, at 337 (1984); Federal GlassCor- Glass Works , 162 U.S.P.Q. 279, 283 (T.T.A.B. 1969). Makitahas asserted that the product designs, the color "Makita blue," and thedesign/color combinations of its tools are distinctive. (SXT 1, p. 14).However, a configuration is rarely inherently distinctive...1 McCarthy,Tradem ark and Unfair ComDetiW , § 7.31 (1984). Color of a product hasalso rarely been found to be inherently distinctive. &I re Owens- -s CorD,, 174 F.2d 1116 (Fed. Cir. 1985).The Conmission has consistently held that product configurations aredescriptive and weak.It has thus required that there be evidence ofsecondary meaning for the configurations to receive trademark protection.as, psr. CertainLunnanc Prodxu , Inv. No. 337-TA-243 (1986); Certginueaw Duty Smle Gun T a m , Inv. No. 337-TA-137 (1984); CertsthFabric Upper U e r..-, Inv. No. 337-TA-130 (1983).Soles, Inv. No. 337-TA-118 (1983); CertainIn view of my findings that the principal design features of the Makitatools in question can be found in numerous non-respondent competitiveproducts (PF 162, 163) and, that the color blue has been used by Makita'scompetitors, including at least one whose usage predates that of Makita inthe U.S.market (FF 164-661, there can be no finding that the tools in20 1