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

use of the color pink on its insulation. Moreover, as will be noted belowin connection with the review of the market survey offered in evidence bycomplainants, that study falls woefully short of establishing secondarymeaning in complainants' use of the color "Makita blue."E. Circ -Evidence - C O D V ~ ~ ~The evidence of record reveals that some of the respondents haveintentionally copied the designs, color, and/or design/color combination ofcomplainants' tools.(FF 240-53).However, a legal right to copy exists,unless a trademark, copyright, or patent is present.Furthermore, underCommission precedent, intentional copying is only treated as evidence ofsecondary meaning in the presence of both a strong mark and othersubstantial evidence of secondary meaning. C e r t d l eFaucu,337-TA-167, (19841, Unreviewed ID at 40-47; Tfollev Wheel Ass- , 337-TA-161 (1984); Certain Sneakers With Fabric UDoers and Rubber Soleg , 337-TA-118 (1983).Thus, without more, intentional copying can not establishsecondary meaning in the claimed marks.Furthermore, complainants' products never appear in advertising orelsewhere without the registered mark "Makita" appearing therewith.(FF 235).Each tool is conspicuously labeled with the Makita mark (&g,physical exemplars in evidence), and all advertising refers to the Makitaname. (PP 235). When a mark is claimed in addition to a mark that isregistered or has acquired common law trademark status in the product,'onemust prove that the second mark has trademark significance separate andapart from the established.mark. Broadcast-Publieations. Inc. v. Busnur,& Sw, 582 P. Supp. 309, 315 (S.D. Fla. 1983); Proctor & Gamble Co. vL211