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DayCab Co., Inc. v. Prairie Tech., LLC, No. 22-5625 (6th Cir. 2023): New case trade dress case discussing, inter alia, the functionality of "conversion kits for tractor-trailer cabs that convert a sleeper tractor—which has a compartment designed for long-haul driving, with a sleeping unit for the driver—into a tractor that does not have a sleeper unit" https://www.opn.ca6.uscourts.gov/opinions.pdf/23a0099p-06.pdf
Here's some context from the district court's decision: https://storage.courtlistener.com/recap/gov.uscourts.tned.93309/gov.uscourts.tned.93309.228.0.pdf
Some of you might remember that the parties previously litigated this issue in Colorado.
The district court, like the TTAB, concluded that the color pink was functional. https://www.scribd.com/document/335930110/C5-Med-Werks-v-Ceramtec-Order
The 10th Circuit didn't reach the trademark issue because it concluded that the District Court didn't have personal jurisdiction over CeramTec: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110226021.pdf
CeramTec has appealed its TTAB loss to the Federal Circuit: https://www.scribd.com/document/625729314/CeramTec-GmbH-v-CoorsTek-Bioceramics-LLC-Notice-of-Appeal
CeramTec has trade dress registrations that claim the color pink for use in connection with hip implants.
But it has "sought or obtained additional [utility] patent protection for compositions claiming the beneficial effects of chromia, the chemical that turns the compound pink."
The TTAB held that, in this context, pink is functional & unregistrable
@Tusky Is/are there (a) reason(s) why we can't easily select a user name or text from a toot in order to #copy and then #paste elsewhere? If not, please consider making that #functionality possible; if so, please do tell why, with thanks.
It's worth noting that the patents here were utility patents, not design patents.
I hope someday courts take the public-domain-robbing issue as seriously with visual inventions as they do with useful inventions.
"Most of the issued patents cited in this brief have expired, meaning that the disclosed features are in the public domain. To conclude that [Timberland] can strip the public's right to copy and benefit from these features today would be antithetical to the pro-competitive objectives of both trademark and patent law."
TBL Licensing v. Vidal, 2022 WL 17573906, at *5 (E.D. Va. Dec. 8, 2022).
h/t @ TTABlog: http://thettablog.blogspot.com/2022/12/ed-va-affirms-ttab-timberland-boot.html
In prior litigation, CeramTec tried to argue that (at least some of) the patents weren't a problem because they covered both pink and not-pink embodiments: https://www.scribd.com/document/371204153/C5-Medical-Werks-v-CeramTec-Appellant-Brief
But the 10th Circuit didn't get to that issue because it concluded the district court lacked personal jurisdiction over CeramTec: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110226021.pdf
How can pink be functional, you ask? Basically, the pink comes from chromium oxide, which makes the implants harder, tougher, stronger.
Indeed, CeramTec "has sought or obtained additional patent protection for compositions claiming the beneficial effects of chromia, the chemical that turns the compound pink."
The Saga of the Pink Hip Implants continues:
The TTAB has granted petitions to cancel U.S. Trademark Registrations No. 4319095 & 4319096 as functional. http://ttabvue.uspto.gov/ttabvue/ttabvue-92058781-CAN-171.pdf
I assume CeramTec will appeal.
H/t TTABlog: https://thettablog.blogspot.com/2022/12/ttab-grants-petitions-for-cancellation.html
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