Authored by: Jeremy J. Gustrowsky
In a recent decision, the Federal Circuit Court affirmed that PT Medisafe Technologies could not register the dark green color (Pantone 3285c) used on its chloroprene medical examination gloves as a trademark. Medisafe argued that this specific shade of green should serve as a unique source identifier for its gloves, but both the U.S. Patent and Trademark Office (USPTO) and the Trademark Trial and Appeal Board (TTAB) found otherwise. The court agreed, holding that the color was simply too common in the industry to point to a single manufacturer.
The key legal question was whether a color can be so widely used that it becomes generic—meaning it merely describes a type or category of product, rather than a particular brand. The court applied a two-step test: first, it identified the “genus” or category of goods (here, all chloroprene medical examination gloves), and second, it asked whether the public sees the color as a general feature of that category, rather than a brand indicator. Evidence showed that many companies use a similar dark green for their gloves, so consumers would not associate the color with Medisafe alone.
Medisafe tried to show that its green gloves had acquired distinctiveness, submitting declarations and a customer survey. However, the court found these efforts unconvincing. The survey was small, conducted by Medisafe’s own counsel, and the declarations were not representative of the broader marketplace. The Board and the court both concluded that Medisafe’s evidence did not overcome the strong proof that the color was generic in the industry.
This decision highlights that while colors can sometimes function as trademarks, they must be distinctive and not commonly used in the relevant market. If a color is generic—widely used and not associated with a single source—it cannot be registered as a trademark.