Moldex-Metric, Inc. v. McKeon Products, Inc., No. 16-55548 (9th Cir. 2018)
Annotate this CaseThe 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.
Court Description: Trademark. The panel reversed the district court’s summary judgment in favor of the defendant in a suit for trademark infringement. Moldex-Metric, Inc., a producer of foam ear plugs with a specific bright green color, alleged that McKeon Products, Inc., infringed its mark by using a similar green color for ear plugs. The district court concluded that the green color mark was functional and thus not protectable as trade dress. Reversing, the panel held that the existence or nonexistence of alternative designs is probative of functionality or nonfunctionality. Thus, evidence of alternative colors must be considered in deciding the functionality of Moldex’s mark. The panel concluded that there remained a dispute of material fact as to whether Moldex’s bright green color was functional. The panel vacated the district court’s grant of summary judgment and remanded for the district court to consider McKeon’s arguments both that Molex’s green color lacked secondary meaning and that there was no likelihood of confusion, and then if necessary go to trial. MOLDEX-METRIC V. MCKEON PRODUCTS 3
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