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

associate the co!orwith a source, comes nowhere near i3 thzt in Qwens-Clornlnn.Complainants admit thatunique color, (FF 230-34)of their advertising stresses their allegedand indeed Makita's catalogues were not ever.printed to show their tools in color until after 1988. l6' (FF 2311. Thefact that Makita has advertised in other mediums that show their ~00;s incolor is unpersuasive because Makitamedia in a different color (red),(((((also advertises the same tools Ir: such( C )C )C )C 1'C 1C 1(C )( c) In short, I cannot find that Hakita's advertising efforts evidence amethod of using color so as to cause the purchasing public to identify thecolor with the source of the product.Clearly then, Makita's use of the color "Hakita blue" does not meet thevery difficult evidentiary burden set forth in Owens - Cor-forestablishment of a common law trademark in the blue color used on itstools.In the first place, there is a very definite utilitarian aspect tothe use of the blue color on power tools of industrial grade.Secondly,they have not shown theestablished and pervasiveconsistency and strength of use, nor the well-advertising program which marked Owens-Corning'sfi/ The catalogue coversbut the depictions withinsometimes showed certain of the tools in color,the catalogues were in black and white.210