When the marks at issue are both color marks, "the similarity of the marks must be decided primarily on the basis of visual similarity." Keystone Consol. Indus. v. Franklin Inv. Corp., Can. No. 92066927, 2024 TTAB LEXIS 290, at *56-57 (2024) (quoting In re Cook Med. Techs. LLC, Ser. No. 77882876, 2012 TTAB LEXIS 496, at *12-13 (2012)); Gen. Foods Corp. v. Ito Yokado Co., Opp. No. 91063721, 1983 TTAB LEXIS 70, at *16 (1983). However, "'the test is not whether the marks can be distinguished when subjected to a side-by-side comparison,' but 'rather whether the marks are sufficiently similar in terms of their appearance and overall commercial impression so that confusion as to the source of the goods [or services] offered under the respective marks is likely to result.'" Keystone Consol. Indus. v. Franklin Inv. Corp., 2024 TTAB LEXIS 290, at *57 (quoting In re Cook Med. Techs., LLC, 2012 TTAB LEXIS 496, at *13-14); In re Medline Indus., Inc., Ser. No. 87680078, 2020 TTAB LEXIS 16, at *26 (2020).

Placement of the color marks may be considered. Keystone Consol. Indus. v. Franklin Inv. Corp., 2024 TTAB LEXIS 290, at *62 (citing In re Medline Indus., Inc., 2020 TTAB LEXIS 16, at *43; In re Cook Med. Techs., Inc., 2012 TTAB LEXIS 496, at *19) (Board considered placement of red, white, and blue color combination mark appearing on the entire length of fence posts in different color proportions versus a single color mark appearing on the top portion of similar goods). In addition, conditions surrounding the marks’ exposure to consumers, including "replicating, if necessary, lighting conditions under which a colored product is normally sold" may be taken into account. Id. (quoting In re Medline Indus., Inc., 2020 TTAB LEXIS 16, at *42).

In In re Cook Medical Technologies LLC, the Board affirmed a refusal to register the color "teal" for "medical devices, namely, guiding sheaths for use in conjunction with access needles, wire guides, and dilators for providing access for diagnostic and interventional devices in vascular and non-vascular procedures," holding the mark likely to cause confusion with a registered mark for the color "blue" applied to the tip and indwelling length of catheters. 2012 TTAB LEXIS 496, at *2, *25. Because the registrant’s "blue" mark was not limited to a particular shade of blue, it covered all shades of blue, including the applicant’s "teal." Id. at *19. Further, the Board found that, in the context of the goods at issue, the marks were similar in color, noting that the original description of the applicant’s mark identified it as the color "blue/teal," and that the goods were complementary. Id. at *10-12, *18-20. However, in In re Medline Industries, Inc., the Board reversed a Trademark Act Section 2(d) refusal to register a pale shade of green (Pantone 2274C) for "medical examination gloves" with a registration for a bright shade of green (Pantone 7488U) for "gloves for medical use," because the mark descriptions identified specific shades of green instead of all shades of green and significant third-party evidence corroborated the weakness of the registered mark, such that the difference in shades was "significant enough to make confusion unlikely even though the involved shades of green [were] used on identical goods sold through identical channels of trade to identical customers"). 2020 TTAB LEXIS 16, at *1-4, *45-46.

In Keystone Consolidated Industries v. Franklin Investment Corp., the Board found no likelihood of confusion between a registered mark for red placed on the top portion of metallic fence posts and a registered mark for the combination of red, white, and blue for metal fence posts with a red top, white middle, and blue bottom, even though the goods were identical. 2024 TTAB LEXIS 290, at *86-87. The Board noted that the color combination of red, white, and blue in the mark created a single commercial impression, referring to the national colors of the United States of America or its flag, which impression was reinforced by advertisements in the record; whereas the mark for red placed on the top portion of fence posts created a commercial impression only of a "red top" and the color red. Id. at *72-75. The Board found "the claimed color marks [were] distinct and dissimilar" and the dissimilarity was a "pivotal factor, outweighing the other DuPont factors." Id. at *75, *87.