Amicus Brief

Sulzer Mixpac AG v. A&N Trading Co.

Published: October 18, 2021


Supreme Court of the United States

Our Position

The Second Circuit Court of Appeals erroneously found candy-colored mixing tips of dental components to be functional by failing to apply well-established tests created by the U.S. Supreme Court for assessing utilitarian and aesthetic functionality. The court did not find the trademark-protected candy-colors to be functional under either test, but rather found them to be functional because the colors corresponded to the tip sizes and therefore were of some usefulness to dental practitioners. The Second Circuit’s approach considerably reduces the availability of trade dress protection for product features and adds to the growing confusion among the circuits regarding the proper standard for assessing functionality. The Supreme Court should take the case to reaffirm the national standard for assessing functionality and to provide more certainty to brand owners and discourage forum shopping.