The application describes the mark as:
[A] three-dimensional configuration of five burgers, sliders or sandwiches, with the first burger, slider or sandwich having top and bottom buns depicted in the color blue, the second burger, slider or sandwich having top and bottom buns depicted in the color red, the third burger, slider or sandwich having top and bottom buns depicted in the color yellow, the fourth burger, slider or sandwich having top and bottom buns depicted in the color green, and the fifth burger, slider or sandwich having top and bottom buns depicted in the color purple. The broken lines depicting a toy duck, a plate, the shape of the buns, and certain components of burgers, sliders or sandwiches indicate placement of the mark on the goods and are not part of the mark.The goods covered by the application are "Burgers; sandwiches, sliders." According to the application, the Sugar Factory has used the mark since April 2017.
The specimen submitted with the application, which is supposed to show how the mark is actually used, is below.
A color may be registered as a trademark if it is not functional and shown to have acquired distinctiveness on or in connection with the applicant's goods or services. TMEP 1202.05. A color is functional if it "yields a utilitarian or functional advantage, for example, yellow or orange for safety signs." TMEP 1202.05(b). Further, an applicant must demonstrate that the color mark has acquired distinctiveness, or "source-indicating significance in the minds of consumers." TMEP 1202.05(a). This is a substantial burden. Id.
Does a series of colored sandwich buns yield a utilitarian or functional advantage, like red on a stop sign or yellow/orange on a safety sign? Do you think consumers will recognize the Sugar Factory as the source of these colored sandwich buns? We'll see what the USPTO thinks when this application is assigned to an examining attorney in approximately three months.