by Dennis Crouch
The pending appeal in CeramTec v. CoorsTek Bioceramics again highlights the interplay between utility patents and trade dress protection -- this one focusing on the color pink. The case centers on CeramTec's attempt to maintain trademark registrations for the pink color of its ceramic hip implants after its utility patent expired. While color can sometimes serve as a trademark, the Board's decision to cancel CeramTec's registrations appears supported by the evidence and aligns with key Supreme Court precedent on functionality. At the same time, CeramTec offers a powerful argument that the TTAB decision disregarded direct evidence of non-functionality based upon recent material science testing.
There is some chance that the court will issue a quick affirmance without opinion, but it is more likely that we'll see an opinion in the next few months. (Note, the image above is marked "confidential" but was found in appellant's non-confidential brief making it, in my view, fair game for publication).