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

lue has considerable utility and that manufacturers have depleted variousshades in pursuit of that utilitarian consideration. Under thesecircumstances the color depletion theory has some merit.-, 227 U.S.P.Q. at 419.a, mens-Assuming, though, that "Makita blue" is a distinguishable shadewithout any utility, complainants would have to prove that their colorserves as a source of origin. Where a color is employed by others in theindustry, complainants' must prove that the color acts as an indicator ofI source rather than mere ornamentation. L at 424, n.11 citinn Van Brodec. v. Cox Air Gaune Svst-, 279 F.2d 313, 319, 125U.S.P.Q. 510, 514 (9th Cir. 1960) (red for automotive accessories); U c k &Co. v. Ever - b d v -. CQ. 518 F. Supp. 607, 617, 213U.S.P.Q. 842, 850 (E.D. no. 19811, aff'd, 684 F.2d 546, 215 U.S.P.Q. 97(8th Cir. 1982) (almond for kitchen accessories); Dela ware Co.. Inc. vLTavlor - Bell Co.. Inc,, 249 F. Supp. 471, 479, 148 U.S.P.Q. 368, 374(S.D.N.Y.1966) (pink for cosmetic products)."By their nature color marks carry a difficult burden in demonstratingdistinctiveness and trademark character .I' - , 227 U.S.P.Q., at424. In mens - Co- , the Federal Circuit found that the color pinkfunctioned as a trademark for fiberglass insulation based on the trademarkowner's twenty-nine year advertising effort to associate the color pinkwith its fiberglass insulation, and the evidence of the effectiveness ofsuch use of the color.Id, Each case of an alleged color mark must, ofcourse, be considered on its own merits, but the evidence in this case ofuse of the color, and effectiveness in causing the purchasing public to209