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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Trademark and Copyright

Date & Time
  • event Date

    Tuesday, July 28, 2020

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course will guide IP counsel on protecting color marks. The panel will examine recent court and Trademark Trial and Appeal Board (TTAB) decisions regarding color marks. The panel will also discuss the evidentiary requirements for proving distinctiveness, outline how to show that color is not functional, and offer best practices for protecting color marks.

Faculty

Robert D. Litowitz
Partner
Kelly IP, LLP

Mr. Litowitz has over 30 years of experience in litigating patents, trademarks, and other intellectual property rights before U.S. district courts, the ITC, and the TTAB. He has extensive experience leading and managing a range of litigations on such diverse subjects as pharmaceuticals, healthcare products, designs, product configurations, words, symbols, golf courses, and books.

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Hani Gazal
Attorney
Kelly IP, LLP

Mr. Gazal focuses his practice on trademark and copyright counseling, prosecution, enforcement, and litigation. Prior to joining Kelly IP, he gained extensive experience in IP matters as an intern in NPR’s Office of General Counsel, as a law clerk for the Alliance of Artists and Recording Companies, and as a law clerk for an IP litigation firm in D.C.

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Sara Copeland Parker
Attorney
Kelly IP, LLP

Ms. Parker focuses her practice on trademark litigation before the federal courts and the Trademark Trial and Appeal Board. Following law school, she gained several years of litigation experience as a judicial law clerk for a Utah Supreme Court Justice, a federal district court judge at the District of Utah, and a federal district court magistrate judge at the Western District of Washington.

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Description

In a precedential opinion, the Federal Circuit recently held color marks can be inherently distinctive when used on product packaging even when the color mark is not defined by a peripheral shape or border [In re Forney Industries Inc. (Fed. Cir. 2020)]. The decision opens the door for brand owners to enhance protections for their marketing composed of color.

One of the challenges facing IP counsel is proving that the color mark is not functional and also that it is distinctive. The court's holding that a color motif can be inherently distinctive when used on product packaging may ease the burden, but it remains a hurdle to getting trademark protection.

Listen as our authoritative panel of IP attorneys examines color marks and how the courts and TTAB have treated color marks. The panel will also discuss the evidentiary requirements for proving distinctiveness, as well as the requirement for showing that color is not functional. The panel will offer best practices for protecting color marks.

Outline

  1. Recent court and TTAB treatment of color marks
    1. Federal courts
    2. TTAB
  2. Proving distinctiveness
    1. Evidentiary requirements
  3. Demonstrating color is not functional
  4. Best practices for protecting color marks

Benefits

The panel will review these and other vital questions:

  • What unique challenges arise with color marks?
  • What approaches should counsel consider to register a color mark successfully?
  • What steps can counsel take to provide distinctiveness of a color mark?