On Valentine’s Day, expressions of love do not belong in a black box. The FTD black box may be a nice way to receive an elegant flower arrangement but it’s not a trademark. FTD wanted to register the color black on its packaging as a trademark. The examining attorney refused registration because the color was functional and non-distinctive trade dress. In other words, the proposed mark comprises a feature of the packaging for the identified goods that serves a utilitarian purpose.

WHY YOU SHOULD KNOW THIS. In the trademark world, something that is functional cannot be registered as a trademark. But trademark registration is available if the functional part of the trademark has a non-functional significance. Color is usually functional. But, some colors transcend the functional and are associated with the goods and services of the trademark owners. Here are some examples: UPS Brown (“Pullman Brown”); John Deer Green; Tiffany Blue; Louboutin Red (on the soles of shoes).