CURRENTLY REGISTERED COLOR TRADEMARKS

A color trademark is a non-conventional trademark where at least one color is used to identify the commercial origin of a product or service. A color trademark must meet the same requirements of a conventional trademark. Thus, the color trademark must either be inherently distinctive or have acquired secondary meaning. To be inherently distinctive, the color must be arbitrarily or suggestively applied to a product or service. In contrast, to acquire secondary meaning, consumers must associate the color used on goods or services as originating from a single source. Below is a selection of some currently registered color trademarks in the U.S. Trademark Office:

MARK/COLOR(S)/OWNER:

BANK OF AMERICA 500
blue, red & grey
Bank of America Corporation

NATIONAL CAR RENTAL
green
NCR Affiliate Servicer, Inc.

FORD
blue
Ford Motor Company

VISTEON
orange
Ford Motor Company

76
red & blue
ConocoPhillips Company

VW
silver, metallic blue, black and white
Volkswagen Aktiengesellschaft Corp.

THE HOME DEPOT
orange
Homer TLC, Inc.

HONDA
red
Honda Motor Co., Ltd.

M MARATHON
brown, orange, yellow
Marathon Oil Company

M MARATHON
gray, black & white
Marathon Oil Company

COSTCO
red
Costco Wholesale Membership, Inc.

TEENAGE MUTANT NINJA TURTLES MUTANTS & MONSTERS
red, green, yellow, black, grey and white
Mirage Studios, Inc.

TARGET
red
Target Brands, Inc.

AT&T
light blue, dark blue and gray
AT&T Corp.

WALGREENS
red
Walgreen Co.

MSN
blue
Microsoft Corporation

SAFEWAY S
red
Safeway Inc.

CAT
yellow, black, red & white
Caterpillar Inc.

MOUNTAIN DEW
red, green, white & black
PEPSICO, INC.

PEPSI TWIST
red, blue & yellow
PEPSICO, INC.

BEST BUY
yellow & grey
Best Buy Co., Inc.

TYSON
red
Tyson Foods, Inc.

Can An Individual Inventor Beat Big Business?

Can An Individual Inventor Beat Big Business? The PROBLEM in the decision of Ebay v. MercExchange

The ability of individual inventors to obtain permanent injunctions was placed in jeopardy due to the May 15, 2006 decision in the United States Supreme Court case of eBay, Inc. v. MercExchange, L.L.C.

Prior to the decision, if a district court determines that a patent is valid and is being infringed, the patent owner may ask for a permanent injunction to keep the patent infringer from using the technology contained in the patent. A permanent injunction bars the use of infringing technology and may bring an entire business operation to a halt, as was threatened in the recent Research in Motion (maker of BlackBerry) case. (Research in Motion's petition for writ of certiorari to the United States Supreme Court was later denied.) The threat of a permanent injunction is a powerful bargaining chip and may be used to coerce the infringing party into licensing negotiations. In the event that a patent owner is unable to obtain a permanent injunction, the alleged infringer may drag on litigation to drain the patent owner of financial resources generally required to litigate patent lawsuits. This possible scenario serves as a disincentive for litigation-adverse individual inventors--or small companies--while allowing larger companies to appropriate intellectual property without the consent of its owner.

In eBay, Inc. v. MercExchange, L.L.C., the Supreme Court rejected the general rule of the Court of Appeals for the Federal Circuit that courts will issue permanent injunctions against patent infringement absent exceptional circumstances. Instead, the Court held that district courts should instead apply a four-factor test traditionally used in non-patent cases. The test requires that in order for a court to grant a permanent injunction, the plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

With its decision, the Court placed a sizable burden of proof on individual inventors that must be met before a court will issue a permanent injunction. For patent holders that do not market or sell the invention contained in the patent, satisfying all four prongs of the test may be difficult. Unfortunately, many individual inventors do not market or sell their own patented inventions due to their inability to bring their invention to the market themselves. If an individual inventor cannot satisfy the test, an infringer has no incentive to negotiate for a license and will only have to pay court-ordered damages. The Court appears to be carving out a separate rule or exception even though patent laws grant a patent holder the right to exclude, regardless of what they do with the invention, that which is claimed in the patent. Furthermore, whether large corporations want to admit it or not, many individual inventors throughout the country are acting as research and development for these large corporations by patenting certain technologies that these individual inventors created. The entire basis of the patent system is for the inventors to disclose their technologies to the U.S. Patent Office, and in turn, if novel and non-obvious, to be granted an exclusive right to exclude others from making, using and selling the invention. This exclusive right seems to be eroded by the eBay decision.

The holding of the Court will serve as a disincentive for individual inventors to disclose their inventions and patenting their inventions when someone--like a large corporation--may simply swoop in and appropriate the invention--that the same large corporation's R&D was not able to invent on their own and through their own deep pockets. The holding also encourages patent infringers to treat the steam rolling of the rightful claims of patent holders as mere operating expenses. Furthermore, if the individual inventor cannot guarantee their patent confers the exclusive rights to the invention contained in the patent, companies will become further hesitant
to pay to purchase the patent or license the product--and continue to trample on the rights of the inventor irrespective of the rights once clearly conferred by the patent laws of the United States.

In conclusion, the Court's decision is contrary to innovation and places an individual inventor or small business at the mercy of large corporations. Whether this decision drives inventors from the court system remains to be seen; but, it will likely change the landscape of patent litigation and the strategies that corporations consider to settle with individual inventors.

Inventor Builds Mobile Text Reader for the Blind

American inventor Raymond Kurzweil has unveiled a new mobile device (U.S. Patent Publication No. 20050286743) for blind people that reads aloud any printed text. Three decades ago, Mr. Kurzweil invented the first reading machine that converted text to speech. The machine was the size of a washing machine and cost tens of thousands of dollars. Technology has since decreased the size of scanners and increased computing power, but a user still had to take the text to the computer, and not vice versa.

Mr. Kurzweil named the new device the Kurzweil-National Federation of the Blind Reader, ("K-NFB") because of the Federation's involvement in testing and development. The K-NFB is composed of a digital camera and a personal digital assistant ("PDA") running software that interprets text captured by the digital camera and converts it to speech. The major difficulty in building the K-NFB was that images captured by digital cameras frequently suffer from rotation, illumination and other types of distortions. To overcome these distortions, Mr. Kurzweil and his team of researchers spent over three years developing software algorithms to clean up the images. Many of these advancements have been patented, including U.S. Patent Nos. 6,587,583, 6,052,663 and 6,014,464.

A user operates the K-NFB by holding it over the text he wants to read and taking a preliminary snapshot. The K-NFB recites a "situation report" describing what it sees. If the K-NFB sees what the user wants to read, the user then takes a picture of the text. After a few seconds, the text is read aloud to the user. The user listens to the text via headphones, a Bluetooth headset or built-in speakers. Kurzweil Education Systems Inc. began selling the K-NFB on July 1, 2006 for $3,500.

DESIGN IMPROVEMENTS TO THE SPACE SHUTTLE DISCOVERY

The space shuttle Discovery was launched on July 4th with several improvements in its design. The improvements were aimed at reducing insulation foam that could break off and strike the space shuttle during flight. In 2003, a suitcase-size piece of tank insulation foam weighing 1.67 pounds broke free and struck the space shuttle Columbia's port wing. The resulting damage caused Columbia to break apart during reentry.

External tanks on the space shuttle are made of aluminum and covered with approximately 4,000 pounds of foam insulation to prevent ice buildup caused by the super-cold liquid hydrogen and liquid oxygen stored within the tanks. NASA engineers made numerous improvements to the design of the external tanks, the most significant being the removal of a protuberance air load ("PAL") ramp. The PAL ramp is a thirty-eight feet long piece of foam that acts as a wind shield for pressurization lines and cables. During the Discovery flight in 2005, a one-pound piece of foam broke free from the PAL ramp and narrowly missed the space shuttle's heat shield.

An issue that was not resolved prior to launch was the loss of foam from the shuttle's ice/frost ramps ("IFR") which may be up to three-and-a-half ounces of foam. There are thirty-four IFRs on each shuttle fuel tank, but only the four located at the top of the hydrogen tank pose a risk of producing debris that can strike the space shuttle. NASA's chief engineer, Chis Scolese, and the chief of Safety and Mission Assurance, Bryan O'Connor, voted against launching the space shuttle until the IFRs could be redesigned. NASA administrator Mike Griffin went ahead with the launch after deciding that IFRs do not pose a "probable/catastrophic" threat to the space shuttle. A redesigned version of the IFRs may be installed for future space shuttle flights.

NASA monitored debris falling from the shuttle using new cameras on the orbiter, tank, and solid rocket boosters, as well as 107 ground-based and airplane-based cameras. The cameras detected small pieces of foam breaking from the tank at three minutes and five minutes after liftoff. The most dangerous point during the ascent of the space shuttle occurs one minute after launch when the space shuttle experiences maximum atmospheric pressure. After two minutes into flight, the space shuttle is twenty-five miles into the atmosphere and traveling at 3,000 miles per hour. Impacts from debris are unlikely to do damage at this altitude because the
atmosphere is essentially a vacuum; only a few air molecules are present to create drag on the debris.

The Discovery crew conducted a laser survey of the space shuttle's heat shielding on July 5th to inspect for damage from launch. On July 6th, the astronauts used a 100-foot boom outfitted with cameras to conduct a visual survey of the space shuttle's exterior, the results of which were transmitted back to earth for review. NASA officials appear cautiously optimistic that the shuttle did not incur serious damage during liftoff, but are withholding an official statement until after the data has been examined.

NASA continually improves the technology and design of the space shuttle with some of these innovations resulting in patentable inventions. Since 1976, more than 2,620 patents have been assigned to NASA which has licensed more than 1000 of these patents to companies and individuals for private sector use. These licenses cover many fields including molecular
biology, surgery, computer software and heat transfer.

Mississippi Songwriter Sues Cypress Hill in Chicago Federal Court

Cypress Hill is a Latin American rap group from California. The band's name is based on the area where the founding members grew up; Cypress Avenue in South Gate, Los Angeles. Founded in 1988, Cypress Hill succeeded in selling over 17 million records worldwide. In late June 2006, Glenn Watts, of Greenville, Mississippi, filed a copyright infringement suit against the band in a Chicago Federal Court.

In 1968, Watts co-wrote the song "Is it Because I'm Black," and made a first recording of the song in 1969. In 1969, Watts also registered the song in the U.S. Copyright Office. Later that year, Watts and his co-author transferred rights in the song to a third-party licensee. For the next thirty years, Watts received no royalty payments from the licensee.

In 2005, Watts received a royalty check from a Chicago attorney for use of the song. Watts did not cash the check, but soon thereafter filed a complaint for copyright infringement. The complaint claims that a Cypress Hill song entitled "Interlude" from their 1993 album entitled "Black Sunday" is a copy of Watts' song. However, Watts alleges Cypress Hill removed the lyrics from "Is it Because I'm Black".

If the Court finds that Cypress Hill does infringe Watts' copyright, Cypress Hill may be forced to pay monetary damages and/or be enjoined from performing the song. In this case, an injunction seems unlikely because Watts may benefit from or receive future royalties resulting from the use of the song.

City of Chicago Seeks Trademark Protection for City Assets

The City of Chicago is following other major cities, such as New York City, by seeking trademark protection for its city assets. In May 2006, the U.S. Trademark Office granted a trademark to the City of Chicago for the Chicago Airport System logo worn by employees at O'Hare and Midway airports. In addition, Chicago has pending trademark applications for the Chicago Police and Chicago Fire Department badges. The City also filed a trademark application for the use of sky blue paint used on the Streets & Sanitation Department's garbage trucks.

New York City, who inspired Chicago to seek their own trademark protection, began seeking trademarks for city assets after 9/11. To date, consumers have spent millions of dollars on clothes bearing N.Y.P.D. and F.D.N.Y. logos. New York City sought trademarks to gain revenue from these sales.

The City of Chicago is attempting to obtain trademark protection for city assets for the following reasons: 1) to prevent misuse of the police and fire department marks; and 2) to reap financial benefits from licensing. Licencing the marks for use by companies will allow the City of Chicago to control and manage who uses its marks and how the marks are being used.