Caution! Colours Can Be The Functional Part Of A Product

Moldex has been producing foam ear plugs with a specific bright green color. Since the beginning of its business in 1982 it has sold over 1.6 billion pairs of them. It does not have a federal registration of its green color but it initiated a law suit against the defendant, McKeon in the present case after it began selling similar coloured ear plugs. Both the parties filed for summary judgments and the district court granted it in favour of McKeon.

McKeon claims the green colour to be a functional part of the product. The district court held that the colour of the plug was essential "to increase visibility and facilitate safety compliance checks" and thus it is essential to the use of the ear plug. It fulfils the test set in Qualitex and TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001).