Moldex-Metric, Inc. v. McKeon Products, Inc., No. 16-55548 (9th Cir. 2018)

Link to ad for Moldex earplugs 

Justia: The Ninth Circuit reversed the district court’s grant of summary judgment for McKeon in a trademark infringement action alleging that McKeon’s green ear plugs infringed Moldex’s green earplugs. The panel held that the existence or nonexistence of alternative designs was probative of functionality or nonfunctionality, and thus evidence of alternative colors must be considered in deciding the functionality of Moldex’s mark. The panel held that there was a material dispute of material facts as to whether Moldex’s bright green color earplugs was functional. Therefore, the panel remanded for the district court to consider McKeon’s arguments both that Moldex’s green color lacked secondary meaning and that there was no likelihood of confusion, and then if necessary go to trial.

Text of decision in Moldex-Metric v McKeon:

moldex v mckeon 9th circuit