In a recent decision, McAirlaids, Inc. v. Kimberly-Clark Corporation, — F.3d — (4th Cir. 2014), the Fourth Circuit reversed and remanded a summary judgment order after finding there were triable issues regarding whether a dot pattern for absorbent pads is functional. This decision reflects the ongoing struggle with how to apply the Supreme Court’s holding in Traffix Devices v. Marketing Displays and distinguish between functional and non-functional trade dress when a utility patent is involved.
