A recent Mall of America and Nordstrom shopping trip (with visiting extended family), coupled with some initial moments of admitted boredom, led me to wandering through the shoe department:

Let’s just say, the stroll through the shoe department made it all worthwhile, to capture the above image, showing Louboutin’s latest fashion sense, leading to my mental stroll down memory lane:

Louboutin Red: Blending Into the Background

Louboutin Red-Sole & Surrounding Contrast: An Implied Trademark Limitation

Louboutin: Still Waiting on the Second Circuit Court of Appeals

Louboutin Wins Second Circuit Appeal, Sort Of . . . .

Louboutin & Lessons Learned

That seven month span of blogging was pretty special (February 12, 2012 through September 17, 2012), actually making the case for narrowing Louboutin’s red sole color trademark registration.

In the end, the Second Circuit Court of Appeals ordered the amendment of the red sole color registration to compel the limitation we said was implied: Contrast with the remainder of the shoe.

This, of course, opened the door to requiring that Louboutin tolerate monochrome red shoes, as any red soles on a monochrome red shoe would not possess the necessary constrast to be seen.

Since then, Louboutin has been seeking global protection for his contrasting red-color trademark applied to shoe soles, with a recent win in the EU, however, he’s currently been snagged in India.

Given the striking shoe above, other Louboutin spiked shoes below, and knowing Louboutin’s comfort with non-traditional trademarks, filings at the USPTO seemed plausible, but no, none yet:

Afterall, the spikes appear purely ornamental with the potential for acquired distinctiveness, and no functionality, well, unless this footwear is designed for, shall we say, painful kicks in the pants.

At this point, the Louboutin brand appears synonymous with the red-sole of a woman’s shoe, which probably explains the non-verbal trademark below being applied to other fashion items:

 

 

So, we’ll keep a lookout for new non-traditional trademark filings by Louboutin, while you keep a lookout for any look-for advertising that might set the stage for claimed rights in a spiked mark.

These lime green building sites caught my eye and jogged my trademark memory. First, the future home of the University of Iowa College of Pharmacy, at beam signing, on May 4, 2018:

Second, the expansion of the Metro Transit headquarters near downtown Minneapolis, on June 12:

Of course, the obviously common element of both building sites, besides my iPhone, is the same lime green sheathing, both also branded with the USG and SECUROCK word trademarks.

Then poof, they’re gone, after being covered by some black-colored sheathing, on August 2, 2018:

What’s my point? Actually, I have a few that immediately come to mind, so bear with me.

First, do you suppose United States Gypsum Company views the lime green color of its gypsum panels to be a trademark? Apparently there are no look-for statements on the product itself:

In looking for look-for ads that might draw attention to this particular shade of green as a brand, Green Means Go (scroll down after linking), is the closest I’ve found.

Let’s just say, USG has been far more effective in owning the color red as a band or stripe applied to packaging for plaster products, and the supporting look-for-like TOP RED word mark.

Still, it’s difficult to tell what USG thinks from the general legend used in its online brochures:

“The trademarks USG, FIRECODE, SECUROCK, IT’S YOUR WORLD. BUILD IT., the USG logo, the design elements and colors, and related marks are trademarks of USG Corporation or its affiliates.”

It’s even harder to tell, despite the “colors” mentioned in the legend above, after searching the USPTO, since USG allowed its Supplemental Registration — for what I’m calling the “lime green sheathing” — to expire without first obtaining, or at least, filing for Principal Registration.

The Supplemental Registration described the mark as “the color yellow green (Pantone 375) as applied to the goods.” Namely, “non-metal water-resistant boards and panels for construction.”

Why let it go?

I’m sure the color green is considered difficult to protect for sustainable building materials, but this color mark was narrowed down to the particular Pantone shade. Perhaps the shade changed?

Typically, a Supplemental Registration is considered valuable to a brand owner, while it works to build the evidence necessary to establish acquired distinctiveness for Principal Registration.

In addition, the Supplemental Registration for Pantone 375 was some indication that the USPTO did not view that shade of green as being functional even for sustainable building materials.

We’ll keep watching to see if Principal Registration is pursued.

In the meantime, let us know if you discover any better look-for advertising for USG’s SECUROCK gypsum panel sheathing. Loyal readers know how important look-for ads are for trademark colors.

Last, the now-you-see-them-now-you-don’t green gypsum panels remind me of the lavender color registration I convinced the USPTO to issue for spray in place insulation in 1994, oh the memories!

Back in December we wrote about a trademark infringement case (Weems v. Plews) involving claimed exclusive rights in the color chartreuse as applied to various kinds of hoses.

Since then, Plews has been busy trying to short circuit the case and have the unregistered (common law) trademark infringement claims dismissed, contending Weems did not adequately plead that the color is nonfunctional.

Non-functionality is a required allegation for those claims involving infringement of claimed common law rights — infringement claims based on a Principal Registration, however, don’t require the allegation, since it is believed the USPTO already has determined the question.

Yet, as we have noted before, functionality, if proven, is a ticking time bomb, and it will destroy federally-registered rights no matter how long ago the USPTO issued the registration.

The problem with an early motion to dismiss is that the Court must accept all factual allegations as true and draw all reasonable inferences in favor of the non-moving party: Weems.

So, not surprisingly, the Court denied Plews’ motion to dismiss the common law trademark infringement claims, for now, but I suspect after extensive discovery has been conducted in the case, Plews will attempt a motion for summary judgement to avoid the need for a trial. If so, at that time, the Court will not have to accept as true the allegation of non-functionality, it will have to examine the evidence to see whether functionality remains as a genuine issue for trial.

Meanwhile, Weems has been busy at the USPTO trying to convince the assigned Examining Attorney that the color chartreuse has acquired distinctiveness in garden hoses too, not just the previously federally-registered compressed air hoses. Early in April, Weems filed argument and evidence totaling 153 pages, but no decision there yet.

So, continue to stay tuned, this case shows no sign of trickling to an end any time soon.

Glove4
Chou #1
Glove1
Digitcare
Glove3
Chou #2
Glove2
Chou #3
Glove5
Chou #4
Glove6
Avent Green

 

 

 

 

 

 

 

Back in 2009, we wrote about what was then Kimberly Clark’s pair of single color purple trademark registrations in connection with “gloves for medical and surgical uses” and “disposable nitrile gloves for general use,” now owned by Avent and sold under the HALYARD brand:

HalyardPurpleNitrile

Those registrations are still big deals since they both exist on the Principal Register (as opposed to the Supplemental Register), and as far as I can see, no other medical examination glove colors have been able to withstand the reliable USPTO probing to attain Principal Registration status.

As the above six hand drawings reveal, growing numbers in the medical examination glove world have raised their hands at the USPTO to gain federal registration of a single color or a contrasting pair of colors (one appearing on the inside and the other on the outside).

Let’s wait and see what happens to the six pending applications for the drawings shown above (Chou #1, Digitcare, Chou #2, Chou #3, Chou #4, and Avent Green) after the USPTO rolls up its sleeves, and begins a different kind of hands-on examination. We’ll follow the drama as it unfolds.

From where I’m sitting, it seems doubtful that any will pass the vigorous Principal Register examination, but there are also serious questions as to whether survival of the appropriate Supplemental Register probing is warranted either, as explored more deeply further below.

In addition to #1-4 above, Chou also has a blue/white — outside/inside color combination mark and the inverse of those same colors — both on their way to the Supplemental Register.

Ascend Eagle also has a few hands in the color trademark pot for medical examination gloves, orange is registered on the Supplemental Register (tangerine never made it), but this peach and this red one are both suspended for consideration on the Supplemental Register.

Colur World has a suspended pink single color application too, apparently now attempting Principal Registration, since it already has a Supplemental Registration for pink medical gloves.

While, Xela has secured single color copper and single color magenta trademark registrations — both have landed on the Supplemental Register stretcher too; as did this individual’s single color application for gold colored medical gloves.

With all this focus on gaining Supplemental Registrations in the medical examination glove field, you’d think the USPTO’s probing on the question of functionality has been, perhaps a bit soft.

Turns out, the Digitcare trademark application for an outer-white/inner-black medical exam glove contains an enlightening bit of information that could shine like a flashlight on the question of functionality:

  • “Contrasting Black and White ApexPro identifies conformance to infection control protocols”
  • “High contrast perma-white exterior for improved visibility with infectious fluids”

If so, what kind of future does that signal for this otherwise nearly identical Supplemental Registration, interestingly assigned from Chou to Digitcare, a few years back.

Show of hands, how many see the functionality scalpel removing even the Supplemental Registration option to one or more of the above six pending color applications, given the revelations in the Digitcare file history?

— Jessica Gutierrez Alm, Attorney

If you watch any amount of T.V. or happened to catch either of the AFC or NFC Championship games last weekend, you’ve probably seen one of the recent cell phone carrier ball commercials.

Initially, Verizon created this commercial, wherein a series of colorful balls rolling down a ramp are used to describe Verizon’s apparently superior performance in a study:

 

https://www.youtube.com/watch?v=785YQKmgiTo

 

Verizon clearly demonstrates that its balls are larger and more plentiful than those of T-Mobile, Sprint, and AT&T.

In response, T-Mobile ran this ad, using similarly colored balls and a similar ramp to describe “the rest of the story” from the same study.  It seems now that T-Mobile is the carrier with an abundance of balls:

 

 

Ultimately, Sprint jumped in the ball pit too with this commercial, illustrating that it has the fastest balls, according to a different study:

 

 

Each of the commercials uses similar visuals, music, and even sound effects.  Potential copyright and false advertising issues aside, what struck me about this series of commercials is the strength of the networks’ colors.

Each of these companies has developed such a strong color identifier that, although the voice-over names the other companies, it does not blatantly draw the correlation for the viewer.  It’s immediately apparent which balls represent which network.

From a quick search, it appears that T-Mobile is the only one of the four networks to have sought federal registration of its color mark.  But enforcement of a trademark does not necessarily require federal registration.

This identification of competing brands by their colors suggests an interesting question of nominative fair use.  Nominative fair use is an affirmative defense to trademark infringement that provides for use of another’s mark for comparison or identification purposes.  A typical example of nominative fair use is a car repair shop that specializes in repairing Volkswagens, for example.  Under nominative fair use, the repair shop can advertise that it specializes in repairing Volkswagen vehicles.  Of course the defense does have limits.  The test for nominative fair use requires:

(1) The product cannot be readily identified without using the trademark;

(2) Only so much of the trademark is used as is necessary for the identification; and

(3) No sponsorship or endorsement of the trademark owner is suggested by the use.

We’ve written about nominative fair use of non-traditional trademarks before.  See here and here, for example.  But in those cases, the marks were being used as a prop to help sell unrelated goods or services.  In contrast, in the above commercials, the colors are being used for the purpose of comparing competing companies.  Verizon’s use of the T-Mobile magenta, for example, is for the purpose of identifying T-Mobile as a lesser service provider.

Before we can decide if the colored balls qualify as nominative fair use, however, we first have to determine if this is a trademark “use” to begin with.  Does Verizon’s portrayal of the magenta, orange, and blue balls to illustrate other networks constitute a use of the companies’ color marks?  After all, Verizon is not using T-Mobile’s magenta, Sprint’s orange, or AT&T’s blue to depict a product, packaging, or store trade dress.  It’s simply a series of colorful balls rolling down a ramp.  Even if the colored balls alone are not a trademark use, does it become a trademark use when coupled with the voice-over discussing each company’s study results?

The fact that this use is for purposes of comparing competing phone services seems to suggest that the colored balls are “uses” of the color marks, prompting the further question of whether it is a nominative fair use.

What do you think?  Is this what nominative fair use of a color mark looks like?

sidebysideoxytmobile

Techdirt is crying foul (again) and this time, wrapping the “trademark bully” mantle around the magenta-colored neck of the T-Mobile brand for enforcing its color trademark against OXY.

While I certainly don’t have the details of the dispute (and it appears Techdirt doesn’t either), and OXY hasn’t produced the actual demand correspondence, given the distinctiveness of T-Mobile’s identity and branding, it’s not surprising it’s viewed as an asset worthy of protection.

T-MobileMapWhat is surprising (to me) is that I was unable to find any single color trademark registrations for “magenta” on the USPTO’s Principal Register owned by Deutsche Telekom, the parent company of the T-Mobile brand — only a pair of Supplemental Registrations (here and here).

With more than a dozen years of prominent use of its “magenta” branding, you’d think it is long past due for an upgrade to the Principal Register. It also seems to me that having a Principal Registration for a claimed mark should go a long way to quieting trademark bullying skeptics.

Then again, maybe not. Some view the ownership of a single color as a trademark as ridiculous, dumb, and silly. So, having the USPTO validate such a claim with registration would probably not quiet the concerns of those folks.

Admittedly, sometimes the single color registration issued by the USPTO needs trimming, but single color trademarks have been legally validated for more than three decades now (ask Owens Corning what pink means to their consumers). Color trademarks aren’t going away any time soon, so long as they perform the three critical purposes of a trademark: (1) Identifying the goods or services at issue; (2) distinguishing the goods or services from those of others; and (3) indicating the source of the goods or services.

As I’ve said before and written before here, while so-called trademark bullying does exist, it is frequently a misunderstood and misapplied pejorative label, based on a heavy dose of skepticism and belief of what the law should be, not what the law actually protects.

According to Techdirt:

“What moves the needle on most of these stories from ‘trademark-gone-too-far’ to ‘trademark bullying’ is that these actions tend to be brought against other groups that aren’t even operating within the same industry as the offended. That’s key in trademark disputes where, in most cases, the two parties must be competing with one another for infringement to occur.”

As loyal DuetsBlog readers appreciate, for trademark infringement, i.e., likelihood of confusion to exist, it is black-letter-law that no competition between the parties is required, only likelihood of confusion (based on a balancing of multiple factors) — and not only likely confusion as to source, but also as to sponsorship, approval, affiliation, or some other sort of connection.

So, the lack of direct competition is not determinative of a likelihood of confusion analysis. And, Techdirt and OXY’s focus on the lack of direct competition actually misses the point and oversimplifies the analysis: “We are making a smartwatch – nothing that would eventually compete with Telekom’s products and services.”

OXY’s own marketing materials admit the complementary nature of their smart watch to a smart phone: “OXY is an Android running Smartwatch that is fully customizable and works with virtually any phone.” T-Mobile sells lots of smart phones, and I’d expect that selling smart watches is well within their natural zone of expansion. If so, it’s hard to blame T-Mobile for its concern.

My hope for 2016 is that we’ll see fewer trademark color calamity cliches; the so-called “trademark bullying” mantle will be much more carefully draped; and uninformed skepticism about the validity of trademark rights in single colors will subside.

Instead, hopefully we’ll see much more well-informed focus on the virtually unlimited subject matter of trademarks that identify, distinguish and indicate source, and we’ll look forward to seeing an intelligent application of the likelihood of confusion factors and standard.

How about you, what do you hope for in 2016?

We’ll soon see whether coffee truly goes hand in hand with closers, at least in one famous brand owner’s quest for registration of a non-verbal, non-traditional color trademark at the USPTO. I’ve been noticing Starbucks focus on green straws lately, with the door signage shown below, offering a pretty creative use of “look-for advertising” without using those clunky words:

StarbucksGreenStrawSo, my search of filings at the USPTO was expected to find at least one supporting a claim of ownership to it, but what I found instead is a brewing battle over the green dot on a white cup:

Original December 3, 2012 Drawing for U.S. App. Ser. No. 85792872
Original December 3, 2012 Drawing for U.S. App. Ser. No. 85792872
Original December 3, 2012 Specimen for U.S. App. Ser. No. 85792872
Original December 3, 2012 Specimen for U.S. App. Ser. No. 85792872

Two months ago the USPTO issued a final refusal, maintaining previously issued grounds for refusal, including “the refusals related to the specimen and drawing not matching, the failure to function refusal based on the color mark being nondistinctive, the failure to function as a mark due to nondistinctive background design, and the claims of acquired distinctiveness being insufficient are all made final.”

According to the Examining Attorney: “As an initial matter, it is important to point out that the main issue in this application is whether the mark as shown in the specimens matches the drawing. The applicant has applied for a solid green circle background carrier that is centrally placed on a white beverage cup. The dotted lines on the drawing indicate placement of the mark on an actual cup. The examining attorney’s position is that the only acceptable specimen is an actual white cup with a clearly identifiable green circle background carrier centrally placed in the center of the cup. As discussed below, the specimens submitted by the applicant do not match the drawing.”

And, she goes on: “A claim of acquired distinctiveness under Section 2(f) cannot overcome the matching issue. Nor can any amount of evidence.”

Amended Drawing on October 13, 2015, for U.S. App. Serial No. 85792872
Amended Drawing on October 13, 2015, for U.S. App. Serial No. 85792872

The refusals were maintained despite the amendment to the drawing to add dotted lines, as shown to the right, and despite the amendment to the description of goods, which now reads: “The mark consists of a green circle placed centrally on the front exterior side of a white cup shape. The colors green and white are claimed as elements of the mark. The portions of the drawing represented by dotted lines are not claimed as elements of the mark.

Will Starbucks put this cup of coffee down, not file a Request for Reconsideration by the November 18, 2015 deadline, and fail to close on this application at the USPTO, or will it attempt to best the 200 page Office Action response it filed back in February?

Or, does this new Starbucks application filed just last week provide any insight?

But, what I really want to know is when will we see a non-traditional trademark application to protect the green straw?

 

As it turns out, four days after Easter, the USPTO refused registration of the Big Green Egg’s claimed exclusive rights in the shape and color of its popular barbecue smoker and grill:

GreenEggSpecimenAs you will recall, we wrote about this product configuration trademark application, back in December of last year. Here are the challenges raised by the USPTO in refusing registration:

Specimen Refusal: Applicant submitted the above shown photograph of the goods as a specimen of use, but the Examiner noted that the drawing of the mark showed a smooth surface, lacking the obvious dimples, so overcoming the refusal will likely require a new drawing so it matches the use shown in the specimen; this will then raise the question of whether the dimples can be claimed as part of the non-traditional trademark.

The Examiner is inquiring about whether the dimples have a functional purpose, and if so, she is directing the Applicant to show them in dotted lines to make clear they are not claimed as part of the mark to be registered. If the Applicant attempts to claim them as part of the applied-for mark, showing them in solid lines, the next question will likely be whether that change constitutes a material alteration, requiring a new application.

Shape of Goods Incapable of Serving as Trademark: The Examiner indicated “the shape of the applicant’s goods is nondistinctive and incapable of functioning as a mark,” relying on “printouts from competitors’ websites and the patent applications . . .  which demonstrate that the shape of the applicant’s goods is so commonly used in the industry that consumers are accustomed to seeing such elements on similar products.”

Color Green May Be Capable of Trademark Ownership: Here the Examiner seemed to direct Applicant’s next steps, noting: “The color green as applied to the goods does not appear to have any functional advantage and does not appear to be commonly used by the applicant’s competitors. Therefore, if the applicant limits the mark to just the color green applied to the goods, the applicant may be able to establish that this the product design has acquired distinctiveness or the applicant may be able to register the product design on the Supplemental Register.”

Shape of Goods is Functional and Must Not Be Included as Part of Claimed Trademark: This portion of the refusal relates back to the incapability refusal discussed above, but the Examiner labels the shape of the Big Green Egg with the dreaded F-Word: “[T]he shape of the goods is functional.” Then, the Examiner goes on to discuss the Morton-Norwich factors (that we have discussed numerous times before):

The existence of a utility patent that discloses the utilitarian advantages of the product or packaging design sought to be registered:

The Examiner wrote: “Although there does not appear to be an issued utility patent that describes the functional advantages of the shape of the applicant’s goods, there are several published patent applications that discuss the functional advantages of the shape of the applicant’s goods.”

Advertising by the applicant that touts the utilitarian advantages of the design:

The Examiner directed Applicant’s attention “to excerpts from its website, which discuss the advantages of the shape of the applicant’s goods,” but she did not provide quotations of the concerning language.

Facts pertaining to the availability of alternative designs:

As to the alternative design factor, the Examiner wrote: “The applicant’s goods are a type of grill known as a Komado grill. For this type of grill, the shape used by the applicant is one of a limited number of shapes, and based on the attached examples of competitor use appears to be the preferred shape for this type of grill.”

Facts pertaining to whether the design results from a comparatively simple or inexpensive method of manufacture:

The Examiner’s discussion of this factor seemed confused: “The . . . patent applications and other evidence indicate that the style of grill shown in the applicant’s mark is expensive (to purchase). Thus, it seems likely it is also expensive to manufacture. As a result, all of the above factors favor a finding that the shape of the goods is functional and unregistrable.” Generally, this factor should only disfavor Applicants who have chosen designs that result from the most simple or inexpensive methods of manufacture; this appears not to be the case here.

Last, the Examiner issued an Informational Requirement, basically a set of very pointed questions and requests for advertising, promotional materials, and explanatory materials, that could lead to additional grounds for further functionality refusals, depending on what the materials show and the answers to the questions posed.

So, what do you think, is the shape of The Big Green Egg really nothing more than a Kamodo style grill, or does it have noticeable and distinguishing elements that might permit the particular shape of The Big Green Egg to be owned as part of the claimed non-traditional trademark?

If, in the end, The Big Green Egg is not allowed to claim the shape, and the color green is all that is left, is that enough to support registration and exclusive ownership?

Stay tuned, as we continue to monitor The Big Green Egg’s hunt for non-traditional trademark protection and registration.

#TheDress phenomenon is about to shape the future of color trademarks and trade dress rights.

You may recall, we have written a great deal on the subject of non-traditional trademark protection of colors, especially during the Christian Louboutin red-soled shoe trademark lessons, but more recently we wrote about the legal implications of color selections in branding strategy.

Enter #TheDress . . . .

No one could have foreseen the next viral sensation before last Thursday, and to the extent you’ve been in the dark on this one until now, meet #TheDress that has dominated the press, or most recently provided the most credible threat of “breaking the internet“:

TheDress
BuzzFeed picked up the Tumblr post by “swiked” and promoted it through its widespread distribution channels, and the rest is internet history.

There are basically two camps in this worldwide online debate, one will “say yes to the dress,” perceiving it to be black and blue, while the other will only say yes to the obviously white and gold dress that they see; amazingly both camps are viewing the exact same image.

So, how can that be? According to NBC’s Today Show:

“It’s a perception issue. It’s the way the brain processes information that comes in,” eye surgeon Paul Dougherty told TODAY. “Everyone’s brain is different, so even though it’s the same stimulus coming in, which it is, everyone processes the information differently.”

Others have further explanations for the neuropsychology behind #TheDress phenomenon. Forbes had an interesting guest post from Steven Pinker, professor in Harvard University’s Department of Psychology, that provides a very detailed explanation of why the image of #TheDress provoked the different perceptions:

“Back to the human perceiver. Brains are so good at color constancy that they often succeed even when looking at a photograph of a scene rather than the scene itself. That is, the brain often compensates for color casts in a photo and allows us to see the colors of the objects in the photograph as they would be in the world. But only up to a point – sometimes the same atypical conditions that fooled the camera (such as mixed lighting and unusual materials) can fool the brain, too. The blue-dress photo is one of these marginal cases. Some viewers see the scene as the camera apparently did, interpret the dress as if it were bathed in a bluish light from the shade, and see its colors as white and gold. Others glean enough information from the image to correctly see the dress as illuminated by a brilliant warm light, and hence see the light-bluish portions as deep blue. By the same calculation, a dark yellow patch on the retina (if it came from a surface bathed in bright warm light) would have to be a dark neutral, to wit, black.”

In addition, CNN quoted Dr. Julia Haller, the ophthalmologist-in-chief at Wills Eye Hospital in Philadelphia, as explaining our perception of color this way:

“Ninety-nine percent of the time, we’ll see the same colors. But the picture of this dress seems to have tints that hit the sweet spot that’s confusing to a lot of people.”

Perhaps most interesting, but the least scientific, CBS New York reported one possible explanation of why you might fall into one camp or another:

“Another theory is more philosophical in nature – if you see black and blue, you are dealing with stress in your life, while if you see white and gold, everything is fine.”

You can only imagine what my family did with that theory over the weekend. The stress theory continued to emerge throughout our discussions in my home over the weekend. We comically treated #TheDress image as a modern sort of mood ring deserving repeated measurement, depending on the changing emotional circumstances during any given moment.

My wife and one son, almost exclusively and proudly see white/gold, my daughter and two other sons, accused of consistently having a darker mood, saw only black/blue. What about me? I continue to see white/gold about 50/50 with black/blue.

Perhaps a few hours on a psychiatrist’s sofa would shed some meaningful light on my chameleon like perception? Or perhaps it simply suggests a keen ability to see both sides of an issue, at least until a client picks the right answer. I’m going with the latter explanation.

So, back to the science of color, what does all this say about color trademarks? Since consumer perception controls trademark determinations, will brand owners be inclined to attempt replicating #TheDress phenomenon in their trade dress, packaging, and color marks? Is it even possible?

No doubt, #TheDress is a good reminder that we all perceive color uniquely, so knowing the range of possible perceptions among the relevant population is critical to understanding one’s scope of rights in a single color trademark or color-combination trade dress.

Indeed, assuming a brand owner can replicate the phenomenon, after #TheDress is there such thing as a Single Color Trademark any longer?

What do you think? Will #TheDress phenomenon impact trademark rights in color marks? How?