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

The color depletion theory discussed in Owens - Co rnina has been urged byrespondents as being applicable to this investigation.(RB, at 27, 28). Alarge number of manufacturers in the lucrative industrial-grade power toolmarket have used a number of different shades of blue on their tools. Theblue spectrum is broadly covered by non-accused products.For exampletools of Ryobi (CPX 158). Bosch (CPX 138). Kress (RXP 109 and 3061, Freud(RXP 249), AEG (RXP 91, Tochiba (RXP 2081, and Black and Decker (RXP 430)utilize varying shades of blue, ranging from a very dark blue, to lightblues similar to that of Makita. (a w, respondent P&F/Nu-Way tools--RXP 306, for example -- which are not accused as to color).These toolscover a broad range of the blue spectrum in the Pantone Color Specifier(RXP 168). Thus the case for color depletion is at least as strong here asin much of the legal precedent. w, -bell SOUD Co. v. Amour k&, 175 F.2d 795, 798, 81 U.S.P.Q. 430, 432-33 (3rd Cir. 1949);rna-1 Braid Co. v. Thom Ftench & Sons. Ltd, , 150 F.2d 142, 66U.S.P.Q. 109 (C.C.P.A. 1945).The established meaning of blue in this industry asrepresentingindustrial grade tools, along with the broad range of blues being utilizedin this market for that purpose, supports the application of the colordepletion theory.Moreover, the broad claims of complainants chargingnumerous respondents' products with infringement of the claimed color mark,despite their obvious differences from the exact Makita shade of blue,indicates some danger of "color depletion," if Makita should be found tohave established a valid comon law trademark in this regard.(a, PL~L,CPX 206, 220, 223, 225, 276; all are accused products insofar as color isconcerned, CXA 2, App. A).In short, the evidence reveals that the color208