Forney Industries, Inc. (“Forney”) appeals from a decision of the Trademark Trial and Appeal Board (“the Board”) which affirmed the trademark examining attorney’s refusal to register Forney’s proposed mark on grounds that the proposed mark is of a type that can never be inherently distinctive. In Re Forney Indus., Inc., 2018 WL 4348337 (T.T.A.B. Sept. 10, 2018) (“Board Op.”). Because the Board erred by holding that: (1) a multi-color mark can never be inherently distinctive, and (2) product packaging marks that employ color cannot be inherently distinctive in the absence of a well-defined peripheral shape or border, we vacate and remand for further proceedings.
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