Dave White's SitePro, LLC

Mailed: August 25, 2026
UNITED STATES PATENT AND TRADEMARK OFFICE
Trademark Trial and Appeal Board
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In re Dave White’s SitePro, LLC
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Serial No. 98404066
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Domenica N.S. Hartman of Hartman Global IP,
for Dave White’s SitePro, LLC.
Tasneem Hussain, Trademark Examining Attorney, Law Office 118,
Michael Baird, Managing Attorney.
————
Before Lykos, Lavache, and O’Connor,
Administrative Trademark Judges.
Opinion by Lavache, Administrative Trademark Judge:
Applicant Dave White’s SitePro, LLC seeks registration on the Supplemental
Register of the proposed mark displayed below, for “Construction and Surveyor
Tripod,” in International Class 9.1
1 Application Serial No. 98404066 was filed February 13, 2024, seeking registration on the
Principal Register based on Applicant’s allegation of use in commerce under Trademark Act
Section 1(a), 15 U.S.C. § 1051(a), claiming March 5, 2019, as both the date of first use
anywhere and the date of first use in commerce. On January 2, 2025, Applicant amended the
application to seek registration on the Supplemental Register.
THIS OPINION IS NOT A
PRECEDENT OF THE TTAB

Serial No. 98404066
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The application includes the following mark description and color statement:
The mark consists of the color green, which is the equivalent of Pantone
Matching System 2297C, applied to the legs of the tripods. The matter
shown in the drawing in broken lines serves only to show positioning of
the mark and no claim is made to it.
The color green is claimed as a feature of the mark.
Applicant submitted the following specimen showing how the proposed mark is
actually used in commerce:2
2 February 13, 2024 Application at TSDR 3.
The Trademark Status and Document Retrieval (TSDR) and TTABVUE citations in this
opinion refer respectively to the downloadable PDF version of the electronic application file
and to entries in the Board’s electronic docket. For TTABVUE citations, the number
preceding the TTABVUE designation is the docket entry number and any numbers following
indicate the relevant page numbers within the docket entry.

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I. Procedural History
Applicant initially sought registration of the proposed mark on the Principal
Register, but later amended to the Supplemental Register after the Trademark
Examining Attorney refused registration of Applicant’s proposed mark on multiple
grounds, including that the proposed mark is functional under Trademark Act
Section 2(e)(5), 15 U.S.C. § 1052(e)(5).3 When the Examining Attorney made that
refusal final, Applicant appealed and filed a request for reconsideration. The
Examining Attorney denied the request for reconsideration, and Applicant then filed
an appeal brief.4 However, the Examining Attorney subsequently requested remand
to issue a new nonfinal refusal on the same ground, but under Trademark Act Section
23(c), 15 U.S.C. § 1091(c), in view of Applicant’s earlier amendment to the
Supplemental Register. The Board granted the remand request, and the Examining
Attorney ultimately issued a subsequent final Office action under Section 23(c). The
appeal resumed and the Board provided Applicant time to file a supplemental brief.
3 The other grounds for refusal were eventually obviated and are not at issue in this appeal.
4 Applicant’s Appeal Brief, 6 TTABVUE, is 6 pages long, but features single-spaced text,
rather than the double-spaced text required by Trademark Rule 2.126(b)(1), 37 C.F.R. §
2.126(b)(1). See also Trademark Rule 2.142(b)(2), 37 C.F.R. § 2.142(b)(2) (“Briefs must meet
the requirements prescribed in § 2.126 . . . .”). Nonetheless, we have considered the brief
because, if the text were double-spaced, it would not exceed the 25-page limit for briefs
prescribed by Trademark Rule 2.142(b)(2). See In re Univ. of Miami, No. 86616382, 2017
TTAB LEXIS 171, at *3 n.2 (TTAB 2017) (Board exercised its discretion to consider
applicant’s appeal brief and reply brief, which were not double-spaced, because they would
fall within the applicable page limits if they were double-spaced); cf. In re Dimarzio, Inc., No.
87213400, 2021 TTAB LEXIS 457, at *7 (declining to consider applicant’s appeal brief where
the brief “would undoubtedly exceed 25 pages if Applicant used double-spaced text, as
required”).

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When Applicant’s deadline for filing a supplemental brief passed without one being
filed, the Examining Attorney filed her brief.
For the reasons explained below, we affirm the refusal under Section 23(c)
because Applicant’s proposed mark is functional as applied to the identified goods.
II. Nature of the Proposed Mark
To facilitate our analysis, we first address the nature of Applicant’s proposed
mark. See, e.g., In re Everson, No. 97104306, 2026 TTAB LEXIS 75, at *3; Kohler Co.
v. Honda Giken Kogyo K.K., No. 91200146, 2017 TTAB LEXIS 450, at *54.
The Trademark Act takes a “flexible approach toward the concept of what
constitutes . . . a trademark.” In re Eagle Fence Rentals, Inc., No. 73463319, 1986
TTAB LEXIS 57, at *8. This is reflected in its definition of “trademark,” which
includes not just “any word [or] name,” but also any “symbol, or device, or any
combination thereof” used “to identify and distinguish . . . goods, including a unique
product, from those manufactured or sold by others and to indicate the source of the
goods, even if that source is unknown.” Trademark Act Section 45, 15 U.S.C. § 1127.
Here, the mark drawing and mark description make clear that Applicant’s
proposed mark is a particular color, namely a certain shade of bright, or neon, green,
that is applied to the surface of the legs of Applicant’s tripod. Thus, Applicant seeks
to register the proposed color mark as trade dress for the identified goods. See Wal-
Mart Stores v. Samara Bros., 529 U.S. 205, 209 (2000) (“‘[T]rade dress’ . . . originally
included only the packaging, or ‘dressing,’ of a product, but in recent years has been
expanded by many courts of appeals to encompass the design of a product.”); In re
Post Foods, LLC, No. 88857834, 2024 TTAB LEXIS 1, at *13 (“[C]olor is a type of

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trade dress that is registrable as a trademark only if it serves the same source-
identifying function as a trademark.”). The specimen of record confirms this
understanding. See TRADEMARK MANUAL OF EXAMINING PROCEDURE (TMEP) §
1202.02 (May 2026) (“A determination of whether the mark constitutes trade dress
must be informed by the application content, including the drawing, the description
of the mark, the identification of goods or services, and the specimen, if any.”).
Having defined the proposed mark, we now turn to whether, as a whole, it is
functional and thus cannot serve as an indicator of source for Applicant’s goods.
III. Relevant Law
Under the Trademark Act, functional matter may not be registered on either the
Principal Register or the Supplemental Register. See Trademark Act Sections 2(e)(5)
and 23(c), 15 U.S.C. §§ 1052(e)(5), 1091(c); In re Heatcon, Inc., No. 85281360, 2015
TTAB LEXIS 360, at *9. Specifically, Section 2(e)(5) provides that “[n]o trademark by
which the goods of the applicant may be distinguished from the goods of others shall
be refused registration on the principal register on account of its nature unless it . . .
comprises any matter that, as a whole, is functional.” 15 U.S.C. § 1052(e)(5)
(emphasis added). Section 23(c) likewise bars registration of any proposed mark on
the Supplemental Register that, as a whole, is functional. See 15 U.S.C. § 1091(c)
(allowing registration on the Supplemental Register of “any trademark, symbol, label,
package, configuration of goods, name, word, slogan, phrase, surname, geographical
name, numeral, device, any matter that as a whole is not functional, or any
combination of any of the foregoing, but such mark must be capable of distinguishing
the applicant’s goods or services” (emphasis added)).

Serial No. 98404066
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Regardless of the statutory basis for the functionality refusal, the rationale is the
same: Functional matter cannot serve as an indicator of source for goods. See Everson,
2026 TTAB LEXIS 75, at *6; see also Qualitex v. Jacobson Prods. Co., 514 U.S. 159,
165 (1995) (noting that a functional product feature “cannot serve as a trademark”);
In re Penthouse Int’l, Ltd., 565 F.2d 679, 681 (CCPA 1977) (“A feature dictated solely
by ‘functional’ (utilitarian) considerations may not be protected as a trademark . . . .”
(quoting In re Deister Concentrator Co., 289 F.2d 496, 502 (CCPA 1961)). Thus, the
caselaw applying Section 2(e)(5) to potentially functional matter is equally applicable
to functionality refusals under Section 23(c). See Heatcon, 2015 TTAB LEXIS 360, at
*12 (noting that, even where the application seeks registration on the Supplemental
Register, “and the statutory authority for refusal is Section 23, the case law applying
Section 2(e)(5) and addressing functionality refusals . . . remains equally applicable
because the issue, functionality, is the same”).
That caselaw states that matter is functional “‘if it is essential to the use or
purpose of the article or if it affects the cost or quality of the article,’ that is, if
exclusive use of the feature would put competitors at a significant non-reputation-
related disadvantage.” Qualitex, 514 U.S. at 165 (quoting Inwood Labs. v. Ives Labs.,
456 U.S. 844, 850 n.10 (1982)). Accordingly, color marks may be found functional
where, inter alia, the relevant color improves the safety or visibility of a product or
the product’s user; facilitates identification of a particular type of product; serves a
particular function in the relevant market or industry; or simply makes the product
more useful to the user. See, e.g., Qualitex, 514 U.S. at 169 (suggesting that “the color

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of a medical pill [may be functional] where that color serves to identify the kind of
medication (e. g., a type of blood medicine)” (citing Inwood Labs, 456 U.S. at 853, 858
n.20)); Brunswick Corp. v. British Seagull Ltd., 35 F.3d 1527, 1530, 1533 (Fed. Cir.
1994) (affirming Board’s decision that the color black is functional as applied to
outboard engines for boats because “it is color compatible with a wider variety of boat
colors and because objects colored black appear smaller than they do when they are
painted other lighter or brighter colors”); In re Florist’s Transworld Delivery, Inc., No.
77590475, 2013 TTAB LEXIS 115, at *23-24 (finding the color black, as applied to
boxes for flowers and floral arrangements, functional because “there is a competitive
need for others in the industry to use the color black in connection with floral
arrangements and flowers,” especially in the contexts of bereavement and certain
holidays); Saint-Gobain Corp. v. 3M Co., No. 91119166, 2007 TTAB LEXIS 82, at *77-
78, *82 (finding the color purple, as applied to sandpaper, functional because, inter
alia, it facilitates color coding in the field of coated abrasives and it avoids streaking
and masks other imperfections in sandpaper); In re Ferris Corp., No. 74654765, 2000
TTAB LEXIS 709, at *14 (finding the color pink, as applied to wound dressings,
functional because it “is one of the best or at least one of the few superior ‘flesh colors’
available for wound dressings” that “blends well with (primarily Caucasian) skin
tone”); In re Howard S. Leight & Assocs., No. 74361481, 1996 TTAB LEXIS 4, at *5
(finding the color coral, as applied to industrial earplugs, functional because it makes
earplugs “more readily visible, allowing for easier and quicker safety checks”); In re
Orange Commc’ns, Inc., No. 74107141, 1996 TTAB LEXIS 22, at *17 (finding that the

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colors orange and yellow, as applied to pay phones and pay phone booths, are
functional because the colors would render the phones and phone booths
“demonstrably more visible than phones presented in almost any other color”); Kasco
Corp. v. S. Saw Serv. Inc., No. 92018761, 1993 TTAB LEXIS 19, at *13 (finding the
color green, as applied to wrappers for meat-cutting band saw blades, functional
because it facilitates color coding, “enabling the purchasers and users of the saw
blades to easily distinguish” one type of blade from another).
To determine whether a proposed mark is functional, we consider the evidence
and arguments of record in view of the evidentiary considerations set forth in In re
Morton-Norwich Prods., Inc., 671 F.2d 1332 (CCPA 1982), which we refer to as the
“Morton-Norwich factors.” See, e.g., Heatcon, 2015 TTAB LEXIS 360, at *12
(considering factors set forth in Morton-Norwich to determine functionality).
Specifically, under the Morton-Norwich factors, we consider:
(1) the existence of a utility patent disclosing the utilitarian advantages
of the design;
(2) advertising materials in which the originator of the design touts the
design’s utilitarian advantages;
(3) the availability to competitors of functionally equivalent designs; and
(4) facts indicating that the design results in a comparatively simple or
cheap method of manufacturing the product.
In re Becton, Dickinson & Co., 675 F.3d 1368, 1374 (Fed. Cir. 2012) (citing Valu Eng’g,
Inc. v. Rexnord Corp., 278 F.3d 1268, 1274 (Fed. Cir. 2002)); see Morton-Norwich, 671
F.2d at 1340-41.

Serial No. 98404066
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“It is not required that all four factors be proven in every case, nor do all four
factors have to weigh in favor of functionality to support a refusal.” Heatcon, 2015
TTAB LEXIS 360, at *13-14. Moreover, these factors are not exclusive, as, ultimately,
the functionality determination “‘depends on the totality of the evidence.’” Id. at *13
(quoting Valu Eng’g, 278 F.3d at 1273).
IV. Analysis
In this case, the Examining Attorney argues that Applicant’s proposed color mark
is functional because it consists of a bright, “neon or fluorescent green” that, as
applied to the identified “construction and surveyor tripod,” “acts as a visual indicator
to ensure that users are employing safety measures by using high-visibility gear.”5
The record here does not contain any evidence of the existence of a utility patent
relevant to the proposed mark, and neither the Examining Attorney nor Applicant
address the first Morton-Norwich factor in their briefs. Therefore, we find the first
factor inapplicable and start our analysis with the second factor.
A. Advertising Touting the Utilitarian Advantages of the Design
Claimed in the Mark
Any advertising materials of record “in which the originator of the [proposed
mark] touts the [mark’s] utilitarian advantages” may support a finding that the
proposed mark is functional.6 Becton, 675 F.3d at 1374. Here, the Examining
Attorney has introduced an excerpt from Applicant’s website, which includes a photo
5 Examining Attorney’s Brief, 14 TTABVUE 4.
6 We have no evidence that Applicant is the “originator,” or first user, of the proposed mark.
But the point stands that any statements by Applicant touting the proposed mark’s
utilitarian advantages would be relevant to the functionality analysis.

Serial No. 98404066
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of a tripod in the claimed color, above the text “Out-performs others and gets seen on
the jobsite with UV-resistant high-visibility.”7 Another page on Applicant’s website
again includes a photo of a tripod, specifically the “Salamander RHIVIZ,” in the
claimed color, and states that it “is the first hi-vis heavy-duty composite tripod
designed for all environments.”8
An Amazon product listing for one of Applicant’s “Fluorescent Green” tripods
indicates that it features “[h]igh visibility flo-yellow composite legs and struts,” as
shown below:9
7 July 3, 2024 Nonfinal Office Action at TSDR 34-35.
8 Id. at 37.
9 Id. at 47 (arrow added). Based on the photograph in the listing, the referenced “flo-yellow”
color appears to be the same color claimed in the application and displayed in the specimen
of record.

Serial No. 98404066
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Other internet evidence of record aids us in interpreting the advertising claims on
Applicant’s website, and in the Amazon product listing, by explaining the utilitarian
advantages of high-visibility colors in terms of improving safety:
• The Alsco Uniforms website (alsco.com) states that “[h]igh-visibility
colors can increase safety in potentially hazardous environments”
because they “stand out and draw attention.” The website notes, in
particular, that “[n]eon orange, yellow, and green hues help make people
and objects easily identifiable,” which “can reduce accidents and
increase awareness.” As to “neon green, also known as lime green or
fluorescent green,” the website explains that “it stands out next to other
bright colors” and that “it may be a good choice for . . . activities where
daytime visibility is important” and “useful in situations where there
are multiple groups of items . . . that need to be immediately identifiable
or tracked.”10
• A webpage on jupmode.com explains that “[m]ost construction sites use
either green or orange for their high visibility apparel” because “the
Occupational Safety and Health Administration (OSHA) act mandates
the use of these fluorescent colors to keep employees safe.”11
• A webpage on fonirra.com covers “How to Choose the Right Colors for
Your Working Environment,” noting that “neon yellow, safety orange,
and safety green[] are designed to provide maximum visibility in various
work conditions,” and that “[t]he most common color for construction
sites is fluorescent yellow-green.”12
• A blog entry on hsi.com titled “Safety Comes in Many Colors” explains
that “High Visibility Safety Apparel, in shades of neon oranges, yellows
and greens, serves an important role in keeping workers safe, and
visibility is the name of the game.”13
• A webpage on constructionyeti.com discusses the “Safest Colors for a
Construction Site,” indicating that a “High-Visibility Color Study” found
“Fluorescent Yellow-Green” to have the second-highest “average
10 Id. at 41-42.
11 Id. at 70 (emphasis omitted).
12 January 27, 2026 Subsequent Final Office Action at TSDR 9.
13 Id. at 14.

Serial No. 98404066
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detection distance.” The webpage also provides a video explaining “why
Chartreuse (Fluorescent Yellow-Green) is the most visible color.”14
• The hivissupply.com website outlines the history of high-visibility colors
for safety, noting that “[f]rom yellow to orange to lime green, fluorescent
safety workwear helps maintain visibility for workers and is now
standardized by the rigorous ANSI 107 standard.”15
• The ANSI Webstore website (webstore.ansi.org) explains that
“ANSI/ISEA 107-2020 sets forth criteria related to the general design
requirements, testing and performance requirements and product
labeling for high-visibility safety apparel used to enhance the presence
of a wearer.”16
This evidence establishes that a high-visibility color, such as bright or fluorescent
green, applied to products used in construction provides a utilitarian advantage when
applied to such products because it enhances safety by increasing visibility and
awareness. Indeed, the same Amazon product listing for one of Applicant’s tripods,
referenced above, includes a user review stating that the tripod’s “bright color is a
plus as well,” as it’s “easy to see.”17
And Applicant is not the only one to tout the advantages of high-visibility green
when advertising construction and surveyor tripods, as shown by the following
excerpts from third-party websites introduced by the Examining Attorney:
• The Made-in-China website (geomasterchina.en.made-in-china.com)
includes a product listing for a third-party “1.85 Seco-Style Fluorescent
Green GPS Tripod,” stating that the “[h]ighly visible Fluorescent Green”
that appears on the tripod’s legs is “ideal for poorly-illuminated working
sites.”18
14 Id. at 17-18.
15 July 3, 2024 Nonfinal Office Action at TSDR 83.
16 Id. at 86.
17 Id. at 51.
18 Id. at 57.

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• The product description on lowes.com for the “AdirPro Aluminum
Tripod” notes that, “[w]ith high visibility green, the tripod will be able
to be seen at a greater distance.” Elsewhere, the webpage describes the
tripod as a “High Visibility Green Heavy-Duty Aluminum Survey
Construction Tripod with Quick Clamp.”19
• The product description on theodist.com for the “Geotek FGTRI Survey
Tripod” indicates that “[t]he vibrant neon green color enhances visibility
in low-light conditions, improving safety and efficiency.”20
• Amazon includes a listing for a “[h]i-visibility fiberglass tripod” with
bright green legs.21
19 January 30, 2025 Final Office Action at TSDR 8.
20 Id. at 12.
21 Id. at 15.

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Having reviewed all evidence and arguments relevant to the second Morton-
Norwich factor, we agree with the Examining Attorney that Applicant’s own
advertising promotes the utilitarian advantages of the proposed color mark, namely,
that it provides high visibility of construction and surveyor tripods. Cf., e.g., In re
Loggerhead Tools, LLC, No. 85700986, 2016 TTAB LEXIS 260, at *9-12 (finding
instances of applicant touting a utilitarian advantage of the claimed motion feature
of a tool persuasive in the functionality determination); Heatcon, 2015 TTAB LEXIS
360, at *22-24 (deeming references in applicant’s brochure to the utilitarian
advantages of the claimed design to be probative). The third-party evidence discussed
above provides additional support for the conclusion that high visibility of equipment,
including construction and surveyor tripods, offers distinct advantages, especially in
low-light conditions or where the equipment is among other items. Cf., e.g., Heatcon,
2015 TTAB LEXIS 360, at *25-26 (considering third-party references to the
advantages of the design at issue).
Applicant argues, however, that the references to the “high visibility” of its goods
in its advertising is “mere puffery” that simply describes “a feature of the product but

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is not ‘essential to the use’ [of the product] and is not a function.”22 First, we reject
the characterization of these references as “mere puffery,” as Applicant’s tripods do,
in fact, provide high visibility, given that nearly the entire surface of the goods is
covered in the bright green color of the proposed mark.23 Second, Applicant’s
argument that the color is merely a feature, not an essential function, of the goods
relies on an overly strict application of the functionality standard. To reiterate,
matter is functional “‘if it is essential to the use or purpose of the article or if it affects
the cost or quality of the article,’ that is, if exclusive use of the feature would put
competitors at a significant non-reputation-related disadvantage.” Qualitex, 514 U.S.
at 165. Here, the evidence establishes that, for safety and ease of use, high visibility
can be a desirable, sometimes necessary, characteristic for gear used in construction
environments, especially surveyor tripods that might appear among various other
items and need to be seen from great distances. The evidence also shows the color
claimed in the proposed mark is one of a few colors that provide high visibility in
these environments. Thus, the high visibility provided by the color claimed in the
proposed mark is more than a product feature; it fulfills an essential purpose or
function of the goods and affects their quality and usefulness, such that granting
22 Applicant’s Brief, 6 TTABVUE 3.
23 “Puffery” is defined as “exaggerated commendation especially for promotional purposes.”
See MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/puffery
(defining “puffery”) (accessed August 21, 2026). The Board may take judicial notice of
dictionary definitions, including online dictionaries that exist in printed form or regular fixed
editions. In re Red Bull GmbH, No. 75788830, 2006 TTAB LEXIS 136, at *7. Factually
describing a bright green tripod as “high visibility,” as Applicant’s advertising does, cannot
be accurately characterized as “exaggerated commendation.”

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Applicant exclusive right to the use of the color would result in a significant non-
reputation-related disadvantage to competitors. The fact that Applicant and its
competitors tout the high visibility of their bright green tripods reinforces this
conclusion. See Kistner Concrete Prods. v. Contech Arch. Techs., Inc., No. 92048733,
2011 TTAB LEXIS 8, at *41 (“If a seller advertises the utilitarian advantages of a
particular feature of its product, this constitutes strong evidence of functionality.”).
We are also unpersuaded by Applicant’s argument that there is no industry
“standard for ‘high visibility’ in regard to equipment such as the kind sold under the
Mark.”24 We are not aware of, nor has Applicant pointed to, any requirement that a
product feature can only be functional if it relates to or meets an industry standard.
We acknowledge that the industry standard referenced in the discussion of the
evidence above relates to safety apparel, not construction or surveying equipment.
Nonetheless, it is relevant to the extent it shows that certain high-visibility colors,
including bright green, can provide a safety function in construction environments.
We find that the second Morton-Norwich factor strongly supports the conclusion
that the applied-for mark is functional.
B. Availability of Functionally Equivalent Designs
Another factor to consider is the availability of designs that are functionally
equivalent to the design claimed in the proposed mark. See Becton, 675 F.3d at 1374.
“[A]s a general matter, alternative designs need not be considered if the other
evidence of record establishes functionality.” Everson, 2026 TTAB LEXIS 75, at *15;
24 Id. at 3.

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see Becton, 675 F.3d at 1376 (stating that there is no need to consider availability of
alternative designs “if functionality is found based on other considerations”). Here,
the evidence considered under the second Morton-Norwich factor strongly supports
the conclusion that the proposed mark is functional. Nonetheless, we have considered
all the evidence of record, as well as Applicant’s arguments, concerning potential
alternative designs. See Valu Eng’g, 278 F.3d at 1273 (“Functionality is a question of
fact, and depends on the totality of the evidence.” (internal citations omitted)); see
also Becton, 675 F.3d at 1376 (noting that the Board considered evidence of potential
alternative designs even though functionality could be found based on other
considerations).
The “design” at issue in this case is the application of a particular bright shade of
green to the legs of a construction and surveyor tripod. Applicant claims that it “offers
the same products in various other colors,”25 and its competitors “produce and sell
similar products to those in the [Applicant’s] Salamander line and have featured
these products in a variety of colors.”26 Applicant thus argues that “[c]ompetitors
would not be put at any disadvantage under the functionality doctrine if they were
barred from the use of [the claimed] green, and they have not used said color to
date.”27
25 Id. at 3.
26 Id. at 3-4.
27 Id. at 4 (unnecessary comma omitted).

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However, as the Examining Attorney correctly points out, the availability of other
functional colors, like bright orange or neon yellow, does not render the claimed
bright green color nonfunctional.28 See Kohler, 2017 TTAB LEXIS 450, at *111 (“The
availability of alternative designs does not convert a functional design into a non-
functional design.” (quoting Kistner, 2011 TTAB LEXIS 8, at *53)). Further, while
other colors may provide similar functionality, the record establishes that the color
at issue here is one of a very few colors that provide the utilitarian advantages that
Applicant and others tout. Cf. Florist’s Transworld Delivery, 2013 TTAB LEXIS 115,
at *24 (“Allowing singular entities to control certain colors, in a field where color is
both dynamic and has significance, would severely limit the availability of
appropriate color choices to consumers seeking [particular] floral arrangement gifts.”
(cleaned up)); Saint-Gobain, 2007 TTAB LEXIS 82, at *82 (“A deep purple color would
be one of a small number of dark colors that would help manufacturers dye their
products to avoid streaking or other imperfections.”). Particularly compelling on this
point is the evidence indicating that bright green stands out among other colors and
other items, can be seen at great distances, and provides high visibility in daytime or
low-light conditions.29 These characteristics likely explain why, despite Applicant’s
claim to the contrary, the evidence shows that Applicant’s competitors do offer tripods
28 Examining Attorney’s Brief, 14 TTABVUE 9.
29 See July 3, 2024 Nonfinal Office Action at TSDR 41-42, 57; January 30, 2025 Final Office
Action at TSDR 8, 12; January 27, 2026 Subsequent Final Office Action at TSDR 9, 17-18.

Serial No. 98404066
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in shades of bright green.30 Thus, allowing “exclusive use of the [claimed color] would
put competitors at a significant non-reputation-related disadvantage,” Qualitex, 514
U.S. at 165, thereby hindering competition. See Brunswick, 35 F.3d at 1532 (“[I]f the
use of color on the applicant’s goods serves a non-trademark purpose that hinders
competition, the de jure functionality doctrine precludes trademark protection.”); In
re Bose, 772 F.2d 866, 872 (Fed. Cir. 1985) (“If the feature asserted to give a product
distinctiveness is the best, or at least one, of a few superior designs for its de facto
purpose, it follows that competition is hindered. Morton-Norwich does not rest on
total elimination of competition in the goods.”); In re Van Valkenburgh, No. 77025789,
2011 TTAB LEXIS 1, at *20 (“[T]he mere fact that other designs are available does
not necessarily mean that applicant’s design is not functional.”).
Accordingly, we find that this factor supports the conclusion that the proposed
mark is functional.
C. Whether the Method of Manufacturing is Comparatively Simple or
Cheap
Under the fourth Morton-Norwich factor, evidence demonstrating that a proposed
design results from a comparatively simple or cheap method of manufacture may
support a conclusion that the design is functional. See Kohler, 2017 TTAB LEXIS 450,
30 We interpret Applicant’s argument that competitors “have not used said color to date,”
Applicant’s Brief, 6 TTABVUE 4, as an assertion that competitors have not offered tripods in
the specific Pantone shade of green claimed in the application. However, the evidence shows
that bright green tripods offered by competitors are remarkably close to Applicant’s claimed
shade, even if they are not the exact shade. In any event, the availability of other close shades
of bright green does not render the claimed color nonfunctional. See Saint-Gobain, 2007
TTAB LEXIS 82, at *81 (finding applicant’s argument that the claimed purple color was not
functional because it is “not the only shade [of purple] available” unpersuasive).

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at *113 (indicating that “evidence that a product feature makes the product cheaper
to manufacture may be probative in showing functionality”).
Applicant argues that its goods in the claimed color are “more costly to produce
than other colors,”31 but provides no evidence to support this claim. Even if the
claimed color does increase the production cost of Applicant’s goods, that higher cost
does not necessarily render the claimed color nonfunctional if it otherwise results in
a product of superior quality. See In re OEP Enters., No. 87345596, 2019 TTAB LEXIS
278, at *44-45 (“[E]vidence that a design costs more, or has no impact on cost, is
irrelevant if the design is found to work better.”); In re Pingel Enter. Inc., No.
74421666, 1998 TTAB LEXIS 21, at *39 (“That applicant . . . has . . . deliberately
chosen a more complex and expensive manner in which to manufacture its product
does not mean that the configuration thereof is not de jure functional.”).
We therefore find that there is nothing in the record to support a finding that the
comparative cost of producing goods in the claimed color is a probative factor on the
question of functionality here.
D. Other Arguments
Applicant argues that “[t]he Mark was developed as a distinct product line, to
distinguish those with the Mark from other, often very similar, products in commerce
also sold by [Applicant].”32 However, a proposed mark may be functional regardless
of an applicant’s intent in adopting it. See Everson, 2026 TTAB LEXIS 75, at *21.
31 Applicant’s Brief, 6 TTABVUE 3.
32 Id.

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V. Conclusion
Based on all the arguments and evidence of record, which we have considered in
relation to the Morton-Norwich factors, we find that the proposed color mark
comprises matter that, as a whole, is functional as applied to the identified goods.33
Both Applicant and its competitors tout the claimed color’s utilitarian advantages,
namely, providing high visibility at great distances in daytime or low-light conditions,
resulting in increased safety and ease of use.34 And the evidence shows that the
claimed color is one of a very few colors that can provide those advantages. Thus,
registration of the proposed mark must be refused to “protect[] competitors against a
disadvantage (unrelated to recognition or reputation) that trademark protection
might otherwise impose, namely their inability reasonably to replicate important
non-reputation-related product features.” Qualitex, 514 U.S. at 169.
33 Applicant’s brief also contains arguments concerning genericness and acquired
distinctiveness. 6 TTABVUE 5-6. However, genericness is not at issue in this appeal. Further,
a claim of acquired distinctiveness is not appropriate where, as here, the applicant is seeking
registration on the Supplemental Register, because the purpose of claiming acquired
distinctiveness is to obtain registration on the Principal Register of a mark that is not
inherently distinctive but has acquired secondary meaning as a source indicator. See
Trademark Act Section 2(f), 15 U.S.C. § 1052(f); TMEP § 1212 (“If the applicant establishes .
. . that the matter in question has acquired distinctiveness as a mark in relation to the named
goods or services, then the mark is registrable on the Principal Register . . . .”). In any event,
a claim of acquired distinctiveness cannot overcome a functionality refusal under Section
23(c), because the refusal is an absolute bar to registration. TrafFix Devices, Inc. v. Mktg.
Displays, Inc., 532 U.S. 23, 33 (2001) (“Functionality having been established, whether MDI’s
dual spring design has acquired secondary meaning need not be considered.”).
34 In her arguments, the Examining Attorney specifically focuses on the notion that the
claimed color “acts as a visual indicator to ensure that users are employing safety measures
by using high visibility gear.” Examining Attorney’s Brief, 14 TTABVUE 3. We agree that
this is one way the claimed color functions to improve safety, but, as explained above, we find
the evidence establishes that the utilitarian advantages are broader than that.

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Decision: We affirm the refusal to register Applicant’s proposed mark under
Trademark Act Section 23(c) on the ground that it is functional for the identified
goods.