1207.01(b)(xi) Color Marks
When the marks at issue are both color marks, "the similarity of the marks must be decided primarily on the basis of visual similarity." In re Cook Med. Tech. LLC, 105 USPQ2d 1377, 1381 (TTAB 2012) (citing Gen. Foods Corp. v. Ito Yokado Co., 219 USPQ 822, 828 (TTAB 1983)). However, "'the test is not whether the marks can be distinguished when subjected to a side-by-side comparison,' but 'rather whether the marks are sufficiently similar in terms of their appearance and overall commercial impression so that confusion as to the source of the goods [or services] offered under the respective marks is likely to result.'" In re Medline Indus., Inc., 2020 USPQ2d 10237, at *7-8 (TTAB 2020) (quoting In re Cook Med. Tech. LLC, 105 USPQ2d at 1381.
In In re Cook Medical Technologies, the Board affirmed a refusal to register the color "teal" for "medical devices, namely, guiding sheaths for use in conjunction with access needles, wire guides, and dilators for providing access for diagnostic and interventional devices in vascular and non-vascular procedures," holding the mark likely to cause confusion with a registered mark for the color "blue" applied to the tip and indwelling length of catheters. 105 USPQ2d at 1385. Because the registrant’s "blue" mark was not limited to a particular shade of blue, it covered all shades of blue, including the applicant’s "teal." Id., 105 USPQ2d at 1382. Further, the Board found that, in the context of the goods at issue, the marks were similar in color, noting that the original description of the applicant’s mark identified it as the color "blue/teal," and that the goods were complementary. Id., at 1380, 1382-83. However, in In re Medline Industries, the Board reversed a Section 2(d) refusal to register a pale shade of green (Pantone 2274C) for "medical examination gloves" with a registration for a bright shade of green (Pantone 7488U) for "gloves for medical use," because the mark descriptions identified specific shades of green instead of all shades of green and significant third-party evidence corroborated the weakness of the registered mark, such that the difference in shades was "significant enough to make confusion unlikely even though the involved shades of green [were] used on identical goods sold through identical channels of trade to identical customers"). 2020 USPQ2d 10237, at *1, *5-6, *13.