TTAB Affirms Functionality Refusal of the Color Green for Surveyor Tripods

The Board affirmed a refusal to register the color "green," on the Supplemental Register, as a trademark for "Construction and Surveyor Tripod," finding the proposed mark to be functional and therefore unregistrable under Section 23(c). In re Dave White’s SitePro, LLC, Serial No. 98404066 (August 25, 2026) [not precedential] (Opinion by Judge Robert Lavache).

According to the application, "[t]he mark consists of the color green, which is the equivalent of Pantone Matching System 2297C, applied to the legs of the tripods. The matter shown in the drawing in broken lines serves only to show positioning of the mark and no claim is made to it."

The Board observed that "color marks may be found functional where, inter alia, the relevant color improves the safety or visibility of a product or the product’s user; facilitates identification of a particular type of product; serves a particular function in the relevant market or industry; or simply makes the product more useful to the user." [See cited cases for examples, including "black" for outboard motors and "pink" for wound dressings].

Examining Attorney Tasneem Hussain maintained that the proposed mark is functional because it consists of a bright, “neon or fluorescent green” that, as applied to the identified construction and surveyor tripod, "acts as a visual indicator to ensure that users are employing safety measures by using high-visibility gear."

As usual, the Board applied the Morton-Norwich factors:

(1) the existence of a utility patent disclosing the utilitarian advantages of the design;

(2) advertising materials in which the originator of the design touts the design’s utilitarian advantages;

(3) the availability to competitors of functionally equivalent designs; and

(4) facts indicating that the design results in a comparatively simple or cheap method of manufacturing the product.

As to the first factor, there was no evidence or argument regarding the existence of a utility patent. As to the second, the Examining Attorney pointed to applicant's website statements: "Out-performs others and gets seen on the jobsite with UV-resistant high-visibility," and "the first hi-vis heavy-duty composite tripod designed for all environments." An Amazon listing for the product points out the "[h]igh visibility flo-yellow composite legs and struts."

This and other evidence demonstrated that "A high-visibility color, such as bright or fluorescent green, applied to products used in construction provides a utilitarian advantage when applied to such products because it enhances safety by increasing visibility and awareness."

Applicant argued that its statements touting the product were "mere puffery" that described a feature that is not essential to the functioning of the product. The Board was unmoved: "Applicant’s argument that the color is merely a feature, not an essential function, of the goods relies on an overly strict application of the functionality standard."

The evidence also shows the color claimed in the proposed mark is one of a few colors that provide high visibility in these environments. Thus, the high visibility provided by the color claimed in the proposed mark is more than a product feature; it fulfills an essential purpose or function of the goods and affects their quality and usefulness, such that granting Applicant exclusive right to the use of the color would result in a significant non-reputation-related disadvantage to competitors.

The Board therefore found that the second Morton-Norwich factor "strongly supports the conclusion that the applied-for mark is functional."

As to the third factor, the Board noted that "alternative designs need not be considered if the other evidence of record establishes functionality." In any case, "while other colors may provide similar functionality, the record establishes that the color at issue here is one of a very few colors that provide the utilitarian advantages that Applicant and others tout."

As to the fourth factor, applicant argued that its goods in the claimed color are “more costly to produce than other colors,” but it provided no evidence to support that claim. Moreover, "[e]ven if the claimed color does increase the production cost of Applicant’s goods, that higher cost does not necessarily render the claimed color nonfunctional if it otherwise results in a product of superior quality."

Thus, registration of the proposed mark must be refused to “protect[] competitors against a disadvantage (unrelated to recognition or reputation) that trademark protection might otherwise impose, namely their inability reasonably to replicate important non-reputation-related product features.”

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TTABlogger comment: When is the last time the Board found a single color mark to be registrable? I think it was In re Hodgdon Powder Company, Inc., 119 USPQ2d 1254 (TTAB 2016) [precedential], involving the color white for "preformed gunpowder charges for muzzleloading firearms." [TTABlogged here].

Text Copyright John L. Welch 2026.