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ARTICLE · 03 AUGUST 2018

Is A Color Mark Functional? First, Consider The Alternatives

McDermott Will & Emery
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The US Court of Appeals for the Ninth Circuit reversed a grant of summary judgment, finding a genuine issue of material fact as to whether the green color of the plaintiff's earplugs was functional.

United StatesIntellectual Property
Brittany Washington
Brittany Washington
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The US Court of Appeals for the Ninth Circuit reversed a grant of summary judgment, finding a genuine issue of material fact as to whether the green color of the plaintiff's earplugs was functional. Moldex-Metric, Inc. v. McKeon Products, Inc., Case No. 16-55548 (9th Cir., June 5, 2018) (Piersol, J).

Moldex produces foam earplugs with a specific bright green color. After McKeon began using a similar color for its earplugs, Moldex sued for trademark infringement. In response, McKeon claimed the green color mark was functional and thus not protectable as trade dress because the green color increased the visibility of the earplugs during safety compliance checks. The district court agreed and granted summary judgment in favor of McKeon. Moldex appealed.

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