In Re Owens-Corning Fiberglas Corporation

I respectfully dissent.

I

I adhere to the view that “the law is well-settled today that the overall color of a product ... cannot be a trade identity designation, nor is it entitled to registration.” 3 R. Callman, The Law of Unfair Competition Trademarks and Monopolies § 18.13 (4th ed. 1983). That was the law long before the 1946 Lanham Act, it continued to be the law after the Act, and it ought to be the law in this case.1

A

More than two decades before the Lanham Act the Supreme Court applied that rule of law in denying trademark protection to the color of a beverage, announcing that “the…