Moldex-Metric green ear plugs

Time for the “It's not easy being green” (or Greene) jokes.

A team from Quinn Emanuel led by Joe Paunovich hammered out a settlement after an eight-year fight over a particular shade of lime green.

Quinn client Moldex-Metric, Inc. has made disposable green earplugs for commercial, military and other uses since 1982, selling more than 1.6 billion pairs.

When competitors began selling earplugs in a similar shade, Moldex sued for trademark infringement, though it never actually acquired a federal registration of its green color.

The company lost on summary judgment in 2013 when U.S. District Judge George King in the Central District of California held that the color was functional—it increased visibility and facilitated safety compliance checks—and thus was not protectable as trade dress.

Two years later, the Ninth Circuit reversed his decision. On remand, King again reached the same conclusion, and the Ninth Circuit again disagreed. The key factor for the appellate panel: lots of other colors (Hot pink? Neon orange?) could also increase visibility and promote safety. It's not as if lime green was the only option.

Back again on remand, it was apparently time to work out a (confidential) settlement. The deal covers plugs made by McKeon Products, represented by Meylan Davitt Jain Arevian & Kim, and Holmes Weinberg, as well as Swedsafe, which was represented by Nelson Mullins Riley & Scarborough.