PT Medisafe Technologies (“Medisafe”) has petitioned the U.S. Supreme Court to review a Federal Circuit decision upholding the Trademark Trial and Appeal Board’s (“TTAB”) refusal to register Medisafe’s dark green color mark for chloroprene medical examination gloves. In re PT Medisafe Technology, 134 F.4th 1368 (Fed. Cir. 2025). Below are the drawing and specimen submitted in the application:
In its decision, the Federal Circuit found substantial evidence supporting the TTAB’s determination that Medisafe’s dark green color mark is generic and therefore incapable of functioning as a source identifier for chloroprene medical examination gloves. Medisafe argued that the statutory language of 15 U.S.C. § 1064(3), which governs determinations of genericness, applies only to a generic “name” for goods or services and does not extend to trade dress such as color marks.
The Federal Circuit rejected that argument, holding that the statutory language “must be read expansively to encompass anything that has the potential but fails to serve as an indicator of source,” including nonverbal marks such as color. The court applied the Milwaukee test, which first identifies the relevant genus of goods and then considers whether the color is commonly used in the industry, and concluded that as applied to “chloroprene medical examination gloves,” dark green is widely used and thus functions as a product‑category color rather than a source indicator. As generic marks cannot acquire distinctiveness, the court affirmed refusal on both the Principal and Supplemental Registers, reinforcing that color marks are registrable only when consumers perceive the color as designating a single source.
Trademark registrations for colors are excellent tools for enforcing trademark rights, but only if the color is not a common industry color. Please contact Knobbe Martens to discuss whether your use of color warrants a trademark registration.
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