(United States Ninth Circuit) - Reversing the district court's summary judgment in favor of the defendant in a suit for trademark infringement relating to foam earplugs in a specific radiant green color used by the plaintiffs in their earplugs because the district court's conclusion that the green color mark was functional and therefore not protectable as trade dress was in error. The existence or nonexistence of alternative designs is probative of functionality or nonfunctionality and a genuine issue of fact regarding whether the color was functional remained.
Source: findlaw.com