Federal Circuit: Pink Hip Implants Are Functional, Cannot Be Protected as Trade Dress

by Dennis Crouch

The Federal Circuit has affirmed the Trademark Trial and Appeal Board (TTAB) cancellation of CeramTec’s trademark registrations for the pink color of its ceramic hip implants, and also providing an important analysis of functionality doctrine and its intersection with expired utility patents. CeramTec GmbH v. CoorsTek Bioceramics LLC, No. 2023-1502 (Fed. Cir. Jan. 3, 2024).  The cautionary outcome here is unsubstantiated statements in the utility patent left the patentee unable to later claim trade dress protection for the distinctive feature.  Patent attorneys should consider a trade dress discussion with their clients prior to filing a utility application that covers potentially distinctive trade dress. I discussed the case while it was pending. See Dennis Crouch, Pink Ceramic Hip Implants: When Functionality Trumps Trade Dress, Patently-O (October 2024).