The Ninth Circuit reversed a lower court ruling that earplug maker Moldex-Metric Inc.'s signature green color is "functional" and thus not protectable by trademark. A split three-judge panel of the Ninth Circuit reversed and remanded a decision by U.S. District Judge George King granting summary judgment in favor of McKeon Products Inc., holding that the U.S. Supreme Court’s 1995 ruling in Qualitex v. Jacobson Products established that even if a color rendered some functionality for a product, the color could still receive trademark protection if it “is essential to the use or purpose of the article.” “By not addressing essentiality when analyzing the functionality of the ear plugs’ green color, the district court erred,” the panel wrote in the unpublished opinion.
Keyes IP take-away: Protection for color trademarks is tricky. If the color is "functional," that is not necesarily the end of the story. Analysis is required as to whether that color is nonetheless essential to the use or purpose of the article.
Read the Ninth Circuit's decision here.