dissenting.
I respectfully dissent.
I
I adhere to the view that “the law is well-settled today that the overall color of a product ... cannot be a trade identity designation, nor is it entitled to registration.” 3 R. Callman, The Law of Unfair Competition Trademarks and Monopolies § 18.13 (4th ed. 1983). That was the law long before the 1946 Lanham Act, it continued to be the law after the Act, and it ought to be the law in this case.1
A
More than two decades before the Lanham Act the Supreme Court applied that rule of law in denying trademark protection to the color of a beverage, announcing that “the coloring matter is free to all who can make it if no extrinsic deceiving element is present.” Coca-Cola Co. v. Koke Co., 254 U.S. 143, 147, 41 S.Ct. 113, 114, 65 L.Ed. 189 (1920). The district courts also applied the rule prior to the Act. In holding that a razor blade manufacturer prevailed in a suit to prohibit passing off, the court nevertheless held that the manufacturer could not have exclusive use of the color blue, stating that “[a] concern, however, must clearly identify its product by something more distinctive and individual than mere color. ... Color itself is free.” Gillette Safety Razor Co. v. Triangle Mechanical Laboratories Corp., 4 F.Supp. 319, 324 (E.D.N.Y.1933). Shortly before the Act, another district court observed that color must be in the form of a design to constitute a trademark and held that a phonograph record manufacturer could have no trademark rights in the color red “for color qua color may not be a trademark.” Radio Corporation of America v. Decca Records, 51 F.Supp. 493, 495 (S.D.N.Y.1943); cf. Yellow Cab Transit Co. v. Louisville Taxicab & Transfer Co., 147 F.2d 407, 415 (6th Cir.1945) (taxicab company has no exclusive right to the use of the color yellow).
B
After the Act, all the regional circuit courts that confronted the issue continued to recognize the validity of the rule.2
Similarly, the Court of Customs and Patent Appeals has applied the rule. Before *1129the Act the court held that “a mark is not registrable if color alone is its distinguishing characteristic.” In re Canada Dry Ginger Ale, 86 F.2d 830, 833 (CCPA 1936). After the Act, the court continued to recognize the validity of the rule as it had been expressed in other federal courts. Nearly a. decade after the Act the CCPA recognized “the well settled rule that trade-mark rights cannot be acquired in color alone.” In re Swift & Co., 223 F.2d 950, 955, 106 USPQ 286, 289 (CCPA 1955) (citing Campbell Soup Co. v. Armour & Co., 175 F.2d 795, 798, 81 USPQ 430, 433 (3d Cir.1949)). More than two decades after the Act the court recognized the validity of the Decca Records decision that the use of color must be in the form of a design to constitute a trademark: “Nor are we persuaded that our decision here is contrary to what was said in the Decca Records case.” In re Data Packaging Corp., 453 F.2d 1300, 1303, 172 USPQ 396, 398 (CCPA 1972). More recently, in denying registration to a yellow and orange fishing float, the court stated: “Color or colors used as mere surface decoration cannot be monopolized by a claim to trademark rights therein.” Plastilite Corp. v. Kassnar Imports, 508 F.2d 824, 826, 184 USPQ 348, 350 (CCPA 1975).
The development of the jurisprudence under the Lanham Act distills into this rule: “A color, per se, is not capable of appropriation as a trademark.” 1 J. McCarthy, Trademarks and Unfair Competition § 7:16 (2d ed. 1984) (emphasis added).
C
The Act does not require the result the majority reaches, nor is there any persuasive reason for this court to discard decades of jurisprudence in order to extend trademark protection to color per se. There are at least four reasons for this court not to discard this established jurisprudence.
First, the majority’s result ignores the principle of comity. Unlike our exclusive jurisdiction over patent law, this court's jurisdiction over trademark law is shared with the regional circuits. While the decisions of the regional circuits are certainly not binding precedent on this court, they are entitled to at least a modicum of respect and deference. This deference is especially due where there is such a unanimity among circuit courts which have primary responsibility for determining infringement and equal responsibility with this court for determining registrability of a mark under 15 U.S.C. § 1071(b)(1) (1982).3 Even if we had exclusive jurisdiction over trademark law, we should not lightly cast aside a settled interpretation of a statute. There is a valuable public interest in consistency and predictability in the law. Lawyers have advised clients, clients have conducted their affairs, litigants have won and lost and settled, all in light of the interpretation universally applied in the federal courts. Discarding the established jurisprudence and breaking away from the lines of decisions in the regional circuits will have a divisive effect on the trademark law. To create such a fundamental division in the law is directly contrary to this court’s mandate to bring uniformity to the law and will inevitably invite forum-shopping.
Second, there is no need to create such a division in the law. The current interpreta*1130tion of the Act adequately protects the use of color as an element of a trademark.
Even though color itself alone cannot be protected as a trademark, this court and the regional circuit courts, consistent with the rule expressed in Decca Records, have permitted registration of a trademark which used color in a particular design or in an arbitrary or distinctive design. See, e.g., In re Data Packaging Corp., 453 F.2d at 1303, 172 USPQ at 398; In re Todd Co., 290 F.2d 597, 600, 129 USPQ 408, 410 (CCPA 1961); In re Hehr Manufacturing Co., 279 F.2d 526, 528, 126 USPQ 381, 383 (CCPA 1960); Quabaug Rubber Co. v. Fa-biano Shoe Co., 567 F.2d 154, 161, 195 USPQ 689, 694 (1st Cir.1977); Campbell Soup Co. v. Armour & Co., 175 F.2d 795, 798, 81 USPQ 430, 433 (3rd Cir.1949); Life Savers Corp. v. Curtiss Candy Co., 182 F.2d 4, 9, 85 USPQ 440, 443 (7th Cir.1950); Mershon Co. v. Pachmayr, 220 F.2d 879, 883, 105 USPQ 4, 7 (9th Cir.1955).
Unfortunately for Owens-Corning, the Decca Records rule cuts against it in this case. Color uniformly applied to a product is not a design because it has not been used in connection or combination with or impressed in some definite arbitrary symbol or design. This is the crucial distinction between this case and the In re Todd Co. and Vuitton et Fils cases cited by the majority.
Third, there is a reason not to change the law on the factual setting of this case. Changing the law based on the peculiar factual circumstances of this case might create a barrier to otherwise lawful competition in the home insulation trade. Since Owens-Corning on the record before us appears to be the only manufacturer in the trade applying a color to its product and since the majority disparages the color depletion doctrine, the majority finds no public policy reasons for refusal of registration. However, by reason of the dominance of Owens-Corning in the field (its advertising claims a 75 percent market share), pink insulation has become virtually synonymous with home insulation. Thus, new entrants may be unable to effectively compete if barred from making pink insulation. Indeed, the record reveals that Owens-Corning dominates the field to such an extent that “some shoppers will no longer buy fiberglass insulation unless it is pink.” Cf. Deere & Co. v. Farmhand, Inc., 560 F.Supp. 85, 98 (S.D.Iowa 1982) (green farm equipment; protecting “John Deere green” would hinder competition), aff'd, 721 F.2d 254 (8th Cir.1983).
The “property” in a trademark is the right to prevent confusion, not to bar new entrants into the market. As was stated by Chief Judge Markey, in a trademark infringement case:
A “trademark” is not that which is infringed. What is infringed is the right of the public to be free of confusion and the synonymous right of a trademark owner to control his product’s reputation.
... The trademark laws exist not to “protect” trademarks, but, as above indicated, to protect the consuming public from confusion, concomitantly protecting the trademark owner’s right to a non-confused public.
James Burroughs, Ltd. v. Sign of Beefeater, Inc., 540 F.2d 266, 274, 276, 192 USPQ 555, 562, 563 (7th Cir.1976) (Markey, C.J., sitting by designation).
I believe the law in these circumstances limits protection against confusion with respect to such goods to effective labeling. As another court stated:
Palming off is the proper issue, not color.
Even though “mere inability of the public to tell two identical articles apart is not enough to support an injunction against copying,” we recognize that the right to copy unpatented articles is not absolute. Sears [Roebuck & Co. v. Stif-fel], 376 U.S. at 232, 84 S.Ct. at 789 [1964]. The Supreme Court suggests that when there is confusion as to who manufactured nearly identical goods, a court may appropriately require that “goods, whether patented or unpatented, be labeled or that other precautionary steps be taken to prevent customers from being misled as to the source.”
*1131North Shore Laboratories Corp. v. Cohen, 721 F.2d 514, 523 (5th Cir.1983).
Accordingly, refusal of registration does not mean that Owens-Corning is without relief should a competitor attempt to “palm off” its goods as those of Owens-Corning. See Winthrop Chemical Co. v. American Pharmaceutical Co., 94 F.2d 587, 588 (2d Cir.1938) (use of pink as color of tube of same size and shape as plaintiff’s tube enjoined as a part of plan to palm off products). However, even under the doctrine of unfair competition, there may be a legitimate purpose to consumers which is served by a competitor producing a product of the same color. See Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 858, 102 S.Ct. 2182, 2190, 72 L.Ed.2d 606 (1982) (blue capsules; “legitimate reason for producing imitative product”).
The final reason for the general rule that denies to one the appropriation of a particular color is that infringement actions could soon denigrate into questions of shade confusion. As one trial court stated concerning its discussion with counsel regarding the practical difficulty of enjoining the use of “John Deere green”: “The practical problems identified in this discussion lend credence to the ‘shade confusion’ rationale for denying protection of color under the Lanham Act.” Deere & Co., 560 F.Supp. at 97 n. 20. Considering that registrations are printed only in black and white, 37 C.F.R. § 2.52(e), and have only code linings for color (pink and red being the same), registration will add only greater imprecision.
There are such sound reasons against altering the rule that I am convinced this rule should continue to be applied. Since color per se does not have trademark significance and does not fall into the realm of registrable matter as contemplated by the Act, I would affirm the result that Owens-Corning is not entitled to register its asserted mark.
II
Alternatively, even if color itself could be capable of trademark significance, I would affirm based on the Board’s finding that Owens-Corning failed to prove secondary meaning. That finding is not clearly erroneous. See In re Loew’s Theatres, Inc., 769 F.2d 764, 769-70 (Fed.Cir.1985); Stock Pot Restaurant, Inc. v. Stockpot, Inc., 737 F.2d 1576, 1578, 222 USPQ 665, 666 (Fed.Cir.1984).
Owens-Corning relied on affidavit evidence to establish the acquired distinctiveness of its asserted mark. The Board carefully considered the evidence and concluded that the proof was insufficient; the Board found that pink did not function as a trademark for the insulation. I agree with the majority that color marks carry a difficult burden and that each case must be considered on its own merits. I do not agree that the Board placed too heavy a burden on Owens-Corning.
As the Board explained:
The affidavit evidence of record recites applicant’s advertising expenditures for its insulation but does not indicate to what extent that advertising has emphasized “pink” as a mark. There is, moreover, no indication of the extent to which the sample advertising material of record (which emphasize the “pink” mark) have been used. Even that survey evidence of consumer recognition does not make a convincing showing that purchasers of insulation associate pink insulation exclusively with applicant. Stated differently, that some 50% of male homeowners who responded to the survey question knew that applicant makes insulation that is pink does not establish that those respondents associate pink insulation with a single source.
In re Owens-Corning Fiberglas Corp., 221 USPQ 1195, 1199 (TTAB 1984) (emphasis added).
For example, what is wrong with the survey can be illustrated by comparing a different product, yellow legal pads. Owens-Corning’s question about insulation is like asking lawyers whether they know any company that puts out yellow legal pads. The question does not evoke an answer *1132that relates to the source of all such goods. What is wrong with the advertising evidence is that it fails to give any indication of the proportion of expenses allocated to promoting pink as an indication of source, a failure which can only result in guesswork by the court. Since Owens-Corning failed to carry its burden under the most minimal standard of proof it is difficult to understand how the Board imposed an improperly heavy burden.
The Board’s evaluation of the evidence leading to its finding that Owens-Corning failed to establish that pink insulation is associated with a single source does not evoke a “definite and firm conviction that a mistake has been made.” United States v. United States Gypsum Co., 333 U.S. 364, 365, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Accordingly, its finding cannot be regarded as clearly erroneous and must be affirmed.
. The only issue which the parties treated as present in this case was the establishment of secondary meaning. Accordingly, I believe that the issue of registrability of color per se remains open in an opposition proceeding or in litigation respecting this application or a resulting registration.
. Quabaug Rubber Co. v. Fabiano Shoe Co., 567 F.2d 154, 161, 195 USPQ 689, 694 (1st Cir.1977) (yellow-colored oval mark; color alone cannot be appropriated as a trademark); Dallas Cowboy Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366, 374 (S.D.N.Y.) (one cannot acquire a trademark by color alone), aff’d, 604 F.2d 200 (2d Cir.1979); Norwich Pharmacal Co. v. Sterling Drug, Inc., 271 F.2d 569, 572, 123 USPQ 372, 375 (2d Cir.1959) (pink medicinal liquid; that a color may become someone’s exclusive property has been rejected by the courts throughout the years), cert. denied, 362 U.S. 919, 80 S.Ct. 671, 4 L.Ed.2d 739 (1960); Campbell Soup Co. v. Armour & Co., 175 F.2d 795, 798, 81 USPQ 430, 433 (3d Cir.1949) (no exclusive use of half red and half white labels; one cannot acquire a trademark by color alone); North Shore Laboratories Corp. v. Cohen, 721 F.2d 514, 523 (5th Cir.1983) (courts have uniformly rejected sanctioning exclusive rights to product color); Volkswagenwerk Aktiengesellschaft v. Rickard, 492 F.2d 474, 480, 181 USPQ 611, 615 (5th Cir.1974) (automobile manufacturer has no *1129rights in color blue per se); Tas-T-Nut Co. v. Variety Nut & Date Co., 245 F.2d 3, 6, 113 USPQ 493, 495 (6th Cir.1957) (clear that one could acquire no proprietary right in the color or colors used on its packages, as such); Life Savers Corp. v. Curtiss Candy Co., 182 F.2d 4, 9, 85 USPQ 440, 443 (7th Cir.1950) (no exclusive use of multi-colored stripes on packaging; color cannot be monopolized to distinguish a product); Deere & Co. v. Farmhand, Inc., 560 F.Supp. 85 (S.D.Iowa 1982), aff’d, 721 F.2d 253 (8th Cir.1983); Mershon Co. v. Pachmayr, 220 F.2d 879, 883, 105 USPQ 4, 7 (9th Cir.) (white line on green recoil-pad; color alone cannot be protected as a mark), cert. denied, 350 U.S. 885, 76 S.Ct. 139, 100 L.Ed. 780 (1955).
. Moreover, there is no point in granting a registration which will not be recognized by the regional circuits (nor, for that matter, by this circuit which must follow the law of a regional circuit on questions of trademark infringement).