On July 13, 2012, ARAC Experts, LLC of Georgia (“ARAC”) filed a declaratory judgment action in the Northern District of Georgia against Cedar Valley Exteriors, Inc. of Coon Rapids, Minnesota (“Cedar Valley”). ARAC alleges that Cedar Valley threatened litigation for alleged infringement of Cedar Valley’s federally registered trademarks for the color “orange” used in the field of general contracting services, particularly in the area of roofing, siding, rain gutter and window repair to home owners. ARAC seeks a judgment declaring that Cedar Valley’s trademarks are functional and have not acquired distinctiveness or secondary meaning, and, as a result, the mark registrations should be cancelled and ARAC’s use of the color orange does not infringe any of Cedar Valley’s marks.

Cedar Valley’s service marks, Serial Nos. 77142831 and 77143590, are registered in International Class 37, and claim the color “orange” as the sole feature of the mark.  ARAC contends that the color orange “yields a utilitarian or functional advantage” in the construction industry, primarily for safety purposes.  ARAC also asserts that Cedar Valley’s marks do not distinguish between the many shades of the color orange.  As a result, ARAC asks the Court to cancel the federal registrations for the marks.

The case has been assigned action number 1:12-cv-02448, and has been assigned to Senior Judge Robert L. Vining, Jr.

UPDATE:  On October 24, 2012, the parties filed a Joint Stipulation of Dismissal, terminating the case.  See our November 13 post.