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

limited number of alternatives insofar as design is concerned. The batterycartridges are & functional on this same ground. Moreover, they arefurther shown to be utilitarian by the purely functional nature of thedesign alternative that Mr. Bartlett, complainants' design expert, was ableto propose.D. QlorComplainants claim a common law trademark in color alone, as well as incombination with design.Color is usually perceivedas mere ornamentation, but color maynonetheless function as a trademark.In re Owens - Co-Fiberglas Con.,774 F.2d at 1116, 227 U.S.P.Q. 417, 421 (Fed. Cir. 1985). However, "whenthe color applied to goods serves primarily utilitarian purpose it is notsubject to protection as a trademark." mens - Cor u, 227 U.S.P.Q. at 419.Industry practices and competitive needs, of course, factor into thisdetermination. at 419.In this investigation, the evidence reveals that the Bosch Corporation,power tool manufacturer and intervenor herein, (C )( C 1( C )( C Bosch entered the marketwith blue tools. (FF 198-99). Others followed suit, and by the timeMakita entered the market it also chose a blue color to establish its toolsas being industrial-grade. (FF 166). Indeed, the record revealsstraightforward admissions by Makita that it adorned some of its productsin a blue color to distinguish them as being industrial-grade tools.(FF202).207