TTAB Affirms Functionality Refusal of the Color Red for Fake Weapons
In a rambling 44-page decision, the Board affirmed a refusal to register on the Supplemental Register the color red as a trademark for "hand-held, nonfunctioning plastic training equipment in the shape of knives, radios, flashlights, pistols, rifles, handguns and shotguns for use in training law enforcement personnel," finding the proposed mark to be de jure functional. In re Armament Systems and Procedures, Inc., Serial No. 75107678 (Sept. 12, 2005) [not citable]. Applicant ASP stated that "[t]he mark consists of the color [r]ed as applied to the entire surface of the goods."
ASP, with its sights on the TrafFix test for functionality, asserted that the color red is not essential to the use or purpose of its goods, nor does it affect their cost or quality. ASP pointed out that other bright colors are available to competitors, and it argued that there is consequently no competitive need for the color red.
Examining Attorney Glenn G. Clark contended that red "is commonly applied to guns and gun look-alikes in order to indicate that they are nonfunctioning, such as training articles or toys," and that "there is already a prevalent past practice in the industry of use of the color red for this purpose." He submitted website excerpts and NEXIS articles to show use of the color red for mock weapons, statutory citations requiring the use of red and other bright colors, and ASP's own patent stating that red is the "color of choice" for mock weapons [Did Applicant shoot itself in the foot here?].
The Board concluded that the color red "is essential to the safe use of the goods and in fact is required by both federal regulations and by New York City law." It found that there is a competitive need for the color red to remain available for use by others in the trade because "permitting the exclusive use of such a safety feature by applicant would hinder competition by putting competitors at a significant non-reputation-related disadvantage."
"Plainly, if a municipality or other jurisdiction requires that mock firearms for use in law enforcement training be colored red, whether by deference to tradition or otherwise, competitors will be unfairly excluded if only applicant has the recognized exclusive right to use the color red in connection with the sale of such products."
The Board thus agreed with the Examining Attorney that the proposed mark is functional and therefore ineligible of registration on the Supplemental Register.
TTABlog comment: ASP owns several registrations for the word mark RED GUN for fake weapons. Competitors may apparently use the color red on their guns, and they surely may then refer to those guns descriptively as "red guns." Will ASP be gunning for them, armed with its RED GUN registrations? Is RED GUN for fake guns colored red such a weak mark that the competitor will be allowed a wide zone of fair use?
Suppose a unsophisticated gun collector bought a RED GUN brand red fake gun, thinking it was a genuine weapon originating from a communist country. Instead he or she received a fake gun made in the USA. What causes of action would the collector have, and why? Please write legibly, and confine your answer to four bluebook pages.
Text Copyright John L. Welch 2005.