It determined that there were no disputes of material fact because McAirlaids's evidence of nonfunctionality “consist[ed], essentially of its say-so.” McAirlaids, Inc. v. Kimberly–Clark Corp., 2013 WL 3788660, No. 7:12–cv–00578–SGW–RSB, *4 (W.D.Va. July 19, 2013). The district court therefore granted summaryjudgment in favor of Kimberly–Clark.

Dkt. No. 58. The protective order was proposed by defendants Kimberly-Clark Corporation, Kimberly-Clark Worldwide, Inc., and Kimberly-Clark Global Sales, LLC (" Kimberly-Clark" ), and was identical to that used by the parties in McAirlaids, Inc. v. Kimberly-Clark Corp., et al., 7:12-cv-00578, (W.D. Va.), a related trademark infringement case. Plaintiff McAirlaids, Inc. (" McAirlaids" ) filed a Response to the Protective Order, objecting to the terms that restrict the use of information designated as confidential and attorney eyes only.

Accordingly, the court will deny K-C's partial motion to dismiss. The parties were before the court in an earlier case alleging trademark infringement arising out of the alleged trade-dress of K-C's pads. The court found McAirlaids' alleged trade-dress to be functional, and entered summary judgment for K-C. McAirlaids, Inc. v. Kimberly-Clark Corp., 2013 WL 3788660 (W.D. Va. July 19, 2013). I.