Yes, it makes sense that foam safety earplugs might entail bright, vibrant colors so outside observers can know that the user's wearing 'em. That's called "functionality." But McKeon's earplugs happen to be the same fluorescent-lime color as the 1.6 billion pairs of earplugs sold by Moldex-Metric. A reasonable jury might conclude that's a trade dress violation. Since there are lots of other vibrant colors that one might potentially use other than fluorescent-lime.
The Ninth Circuit says that same thing today, albeit in nineteen single-spaced pages.
