RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0235p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MCKEON PRODUCTS, INC.,

Plaintiff-Appellee,

v.

HOWARD S. LEIGHT AND ASSOCIATES, INC.,

Defendant,

HONEYWELL SAFETY PRODUCTS USA, INC., as 

successor-in-interest, 

Interested Party-Appellant.

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No. 20-2279

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:95-cv-76322—Paul D. Borman, District Judge.

Argued: June 9, 2021

Decided and Filed: October 8, 2021

Before: NORRIS, KETHLEDGE, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Mark L. Johnson, GREENE ESPEL PLLP, Minneapolis, Minnesota, for Appellant. 

J. Michael Huget, HONIGMAN, Ann Arbor, Michigan, for Appellee. ON BRIEF: Mark L. 

Johnson, Holley C. M. Horrell, GREENE ESPEL PLLP, Minneapolis, Minnesota, Jill M. 

Wheaton, DYKEMA GOSSETT PLLC, Ann Arbor, Michigan, for Appellant. J. Michael Huget, 

Sarah E. Waidelich, Patrick Rawsthorne, HONIGMAN, Ann Arbor, Michigan, for Appellee.

>
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 2

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OPINION

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NALBANDIAN, Circuit Judge. In 1995, McKeon Products (“McKeon”) sued Howard 

S. Leight and Associates (“Leight”) over its use of a phonetically identical trademark. Both 

companies made earplugs. McKeon used the brand name “MACK’S,” and Leight used the brand 

names “MAX” and “MAX-LITE.”1 The potential for confusion is obvious.

Rather than litigate McKeon’s trademark infringement claims, the parties entered a 

settlement agreement that the district court approved by consent decree. Their goal was to 

prevent consumer confusion over the brand names. To achieve that end, Leight agreed not to sell 

its MAX-brand earplugs into the “Retail Market.” And McKeon agreed that Leight could 

continue to sell its earplugs in “the Industrial Safety Market and elsewhere, except as expressly 

agreed.” 

But the agreement and the consent decree never contemplated the internet. In 2017, 

McKeon complained to Honeywell (which now owns Leight) about sales of MAX-brand 

earplugs on Amazon and other retail websites. McKeon argued that the consent decree prevents 

Honeywell from selling these earplugs on those sites. Honeywell responded that the consent 

decree’s definition of the retail market didn’t cover websites. And, in any event, distributors had 

been selling MAX-brand earplugs on Amazon and similar websites for more than a decade 

without complaint from McKeon. So laches barred any effort by McKeon to belatedly enforce 

the consent decree. 

Unpersuaded, McKeon moved the district court to enforce the consent decree and end 

Honeywell’s online retail sales. McKeon won below, where the district court held that laches 

wasn’t an available defense and that McKeon had the correct interpretation of the consent 

decree.

1For simplicity’s sake, we refer to both of Leight’s trademarks together as the “MAX-brand.”
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 3

Honeywell challenges both determinations. So this appeal poses three questions. 

Is laches available to Honeywell? If so, does laches bar McKeon’s motion to enforce the consent 

decree against the allegedly prohibited online sales? And if McKeon’s motion was timely, is its 

argument that some websites fall into the consent decree’s definition of the retail market correct?

I.

McKeon has sold “MACK’S” earplugs to retail consumers since the 1960s. In the 1980s, 

Leight began marketing and selling MAX-brand earplugs to distributors. The brand names are 

phonetically identical.

In 1995, McKeon sued Leight for trademark infringement. The company was concerned 

that MAX-brand earplugs were encroaching into the retail market. McKeon had historically 

focused its sales on retail consumers and had understood that MAX products were generally sold 

to industrial customers. McKeon moved for a preliminary injunction the next year. 

The parties settled before the district court decided McKeon’s motion. Neither party 

admitted liability, and the district court did not make any finding of consumer confusion. The 

settlement produced a consent decree—styled as a “permanent injunction”—intended “to 

minimize the likelihood of confusion concerning the parties’ respective trademarks by Leight’s 

sale and marketing of [MAX-brand] earplugs in the Retail Market.” (R. 32-2, PageID 31–32.) 

None of its terms prohibits McKeon’s sales or marketing in any way. Instead, the parties 

regulated the business practices of Leight and its various distributors. For example, Leight had 

to stop any packaging of MAX-brand earplugs that made their “sale and distribution 

appropriate for the Retail Market” and ban its distributors from repackaging its earplugs and 

using the MAX-brand trademarks. (Id. at PageID 31.) The consent decree explicitly binds 

Leight’s successors and any party with actual notice.

The consent decree divided the markets into which McKeon and Leight could sell their 

products. McKeon got the “Retail Market,” and Leight got the “Industrial Safety Market and 

elsewhere.” (Id. at PageID 31–32.) The parties defined the “Retail Market” as “the market 

consisting of all retail establishments including the D[r]ug and Grocery Market, sporting goods 
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 4

stores and mass merchandisers.” (Id. at PageID 30.) Mass merchandisers include Walmart, 

Target, and Meijer. (Id. at PageID 32.)

The “Drug and Grocery Market” includes “retail establishments where medicines and 

miscellaneous articles such as cosmetics, food and film and/or where food stuffs, meats, produce, 

dairy products and other household supplies are the principal products sold as well as any 

distributor or supplier who sells to these markets.” (Id. at PageID 29–30.) Walgreens is one 

example. (Id. at PageID 30.) 

Leight retained its right to sell MAX-brand earplugs “in the Industrial Safety Market and 

elsewhere, except as expressly agreed in the Consent Order.” (Id. at PageID 32.) The “Industrial 

Safety Market” is “the market in which manufacturing entities purchase earplugs and other 

hearing protection for their employees’ use as well as any distributor or supplier who sells within 

that market.” (Id. at PageID 30.)

Correspondence from 1999 documents show McKeon handled an alleged violation of the 

consent decree by Bacou USA (“Bacou”), which owned Leight at the time. McKeon complained 

about its discovery of MAX-brand earplugs in drug stores and suggested that this issue had 

arisen before. After reminding Bacou of its “affirmative duty” to ensure MAX-brand earplugs 

are not sold to retailers, McKeon disclaimed any responsibility to “play policeman” and asked 

for copies of the requirements that Bacou was giving its distributors. (R.32-6, Bacou 

Correspondence, PageID 62–64.) Bacou updated its distribution requirements to include an 

explicit ban on the resale of MAX-brand earplugs into “retail/consumer” markets. (Id. at PageID 

78.) And it chastised a vendor that both McKeon and Bacou suspected to be a problem. 

After this dispute fizzled out, the record includes no further correspondence about the 

consent decree until 2017. McKeon has represented both in a declaration and at the hearing on 

the motion to enforce that it has regularly worked with Leight’s parent company at any given 

time to resolve alleged sales of MAX-brand earplugs in the retail market.

By 2009, Sperian Protection (“Sperian”), which then owned Leight, was selling 

MAX-brand earplugs directly on Amazon. Honeywell bought Sperian, and thus Leight, in 2010. 
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 5

Honeywell has never suspended these online sales, which grew by almost 70% from 2016 to 

2017 after growing by 52% from 2015 to 2016. 

In September 2017, McKeon emailed Honeywell after its discovery of MAX-brand 

earplugs available for sale on Amazon. The email asserted that the sales violated the consent 

decree and directed Honeywell to cease and desist. Honeywell responded that its online sales of 

MAX-brand earplugs were “in the industrial safety market [] to manufacturing entities, 

distributors, and resellers.” (R.32-4, Oct. 25, 2017 Email, PageID 38.) McKeon accused 

Honeywell of improperly narrowing the consent decree’s vision of the retail market. It described 

Amazon as “the leading internet retail marketplace,” and further complained about sales 

McKeon had discovered on other websites, like Walmart’s. (R.32-5, Nov. 13, 2017 Letter, 

PageID 42.) McKeon offered to give Honeywell time to remove its MAX-brand products from 

these websites. The record doesn’t contain any further correspondence between the parties.

In March 2018, McKeon moved the district court to enforce the consent decree. 

Magistrate Judge Stafford held a hearing on laches and the interpretation of the consent decree. 

She concluded that laches was not an available defense to the motion to enforce and that 

Honeywell’s online sales violated the consent decree. District Judge Borman adopted her 

Amended Report and Recommendation and granted McKeon’s motion. 

Honeywell moved to stay the order and filed a notice of appeal while that motion was 

pending. The district court stayed its ruling and required Honeywell to pay a $500,000 bond.

II.

We review both whether laches is available as an affirmative defense and the 

interpretation of a consent decree de novo. Chirco v. Crosswinds Cmtys., Inc., 474 F.3d 227, 231 

(6th Cir. 2007) (laches); Evoqua Water Techs., LLC v. M.W. Watermark, LLC, 940 F.3d 222, 

228–29 (6th Cir. 2019) (consent decrees).

III.

The first issue is whether Honeywell can raise laches as an affirmative defense to 

McKeon’s motion to enforce the consent decree. We have already resolved that question 
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 6

affirmatively. See Bergmann v. Mich. State Transp. Comm’n, 665 F.3d 681, 684 (6th Cir. 2011). 

A motion to enforce a consent decree seeks an equitable remedy and is thus susceptible to 

equitable defenses. Id. at 683 (citing Cook v. City of Chicago, 192 F.3d 693, 695 (7th Cir. 1999) 

(Posner, C.J.)). Every other circuit to address whether laches can bar a motion to enforce a 

consent decree has reached the same conclusion. Coffey v. Braddy, 834 F.3d 1184, 1189 (11th 

Cir. 2016); Brennan v. Nassau County, 352 F.3d 60, 63–64 (2d Cir. 2003) (per curiam); Cook, 

192 F.3d at 695; cf. Gov’t Emps. Ret. Sys. of V.I. v. Gov’t of V.I., 995 F.3d 66, 90–94 (3d Cir. 

2021) (“GERS”). 

McKeon contends that this general rule should not apply to consent decrees in trademark 

infringement cases because we have rejected laches where a trademark plaintiff seeks equitable 

relief.2 See Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 412 (6th Cir. 2002). 

Consent decrees are court judgments that appear in all types of case. See, e.g., GERS, 995 F.3d 

at 71 (public pension dispute); Braddy, 834 F.3d at 1186 (racial discrimination); Cook, 192 F.3d 

at 694 (public employee tenure). And McKeon doesn’t cite any authority supporting the idea 

that the legal principles applicable to the underlying dispute affect the enforcement of the 

consent decree that resolved that dispute. This makes sense—the Supreme Court has directed us 

not to graft even general procedural rules onto consent decrees, let alone particular substantive 

ones. Compare Fed. R. Civ. P. 71 (“When an order grants relief for a nonparty or may be 

enforced against a nonparty, the procedure for enforcing the order is the same as for a party.”), 

with Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975) (“[A] well-settled line 

of authority from this Court establishes that a consent decree is not enforceable directly or in 

collateral proceedings by those who are not parties to it even though they were intended to be 

2

It’s unclear that the rule McKeon is relying on remains good law after the Supreme Court’s recent 

decisions in Petrella and eBay. Those cases, like this dispute here, dealt with claims for equitable relief in 

intellectual property disputes. In Petrella, the Supreme Court vacated the dismissal of a Copyright Act suit and 

overturned the Ninth Circuit’s presumptive application of laches to certain copyright cases. Petrella v. MetroGoldwyn-Mayer, Inc., 572 U.S. 663, 675–77, 686–88 (2014). And in eBay, the Supreme Court vacated an 

injunction and overturned the Federal Circuit’s “categorical” rule for issuing injunctions in certain patent cases. 

eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 393–94 (2006). So there is reason to doubt that our own 

categorical rule—laches cannot be a defense to claims of injunctive relief in trademark cases—remains good law. 

Cf. Kehoe Component Sales Inc. v. Best Lighting Prods., 796 F.3d 576, 584–85 (6th Cir. 2015) (assuming, rather 

than holding, that laches was available as a defense to injunctive relief). And if that general rule is no longer good 

law for trademark cases, then it has no application in our consent decree cases.
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 7

benefited by it.”) and Aiken v. City of Memphis, 37 F.3d 1155, 1167 (6th Cir. 1994) (en banc) 

(quoting the same).

In sum, then, a motion to enforce a consent decree is an equitable action subject to 

equitable defenses. Legal doctrines that would apply to the underlying disputes are inapplicable. 

There is no exception for trademark disputes. 

IV.

The second issue is whether laches applies. The district court did not consider the merits 

of laches given its holding that laches was unavailable as an affirmative defense. We generally 

will not decide issues that were unresolved below. Lindsay v. Yates, 498 F.3d 434, 440–41 (6th 

Cir. 2007). But here, both parties have briefed the issue, they are asking us to decide it, and 

doing so promotes judicial economy. Id. 

Honeywell, as the party pleading laches, has the burden of proof to show: (1) lack of 

diligence by McKeon and (2) prejudice. See Chirco, 474 F.3d at 231. We consider prejudice 

and delay together, weighing everything relevant to whether we ought to grant relief. 11A Mary 

Kay Kane, Federal Practice and Procedure (Wright & Miller) § 2946 (3d ed. 2021). Delay 

alone cannot warrant laches. See Ford Motor Co. v. Catalanotte, 342 F.3d 543, 550 (6th Cir. 

2003) (citing Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946)). Rather, laches is “principally 

a question of the inequity of permitting the claim to be enforced.” Id. (quoting Holmberg, 

327 U.S. at 396). 

We will consider any lack of diligence from the time at which McKeon knew or should 

have known that Leight’s successors had violated the consent decree. See, e.g., Nartron, 305 

F.3d at 409. In other words, constructive notice is the appropriate standard for measuring delay. 

See, e.g., United States v. City of Loveland, Ohio, 621 F.3d 465, 473–74 (6th Cir. 2010); 

Nartron, 305 F.3d at 409 (6th Cir. 2002); Herman Miller, Inc. v. Palazzetti Imports & Exports, 

Inc., 270 F.3d 298, 321–22 (6th Cir. 2001); Kellogg Co. v. Exxon Corp., 209 F.3d 562, 573–74 

(6th Cir. 2000); see also 30A C.J.S. Equity § 151 (2021); 27A Am. Jur. 2d Equity § 139 (2021).
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 8

Cook is instructive. In Cook, the Seventh Circuit affirmed the district court’s partial 

application of laches based in part on the plaintiff’s failure to diligently ensure compliance with a 

consent decree’s terms. See Cook, 193 F.3d at 298. A consent decree signed in 1983 required 

the city to notify the plaintiff of future openings in Director-level positions. Id. at 694. 

Openings arose in 1985, 1986, and 1989. Id. The city, in violation of the consent decree, failed 

to tell the plaintiff about them. Id. The plaintiff learned about the 1989 opening in 1994, and she 

sued for backpay. See id. The district court applied laches to her claim from 1989 onward, 

concluding that “a reasonable person in Cook’s position, if genuinely interested in a Director’s 

job, would have inquired from time to time regarding vacancies rather than waiting year after 

year for more than a decade to be notified.” Id. at 694–95. The Seventh Circuit affirmed, noting 

the potential absurdity that “Cook could have sought backpay to 1983 on her deathbed, given the 

lack of an expiration date for the employment option that the consent decree gave her.” Id. at 

695. 

Here, McKeon has not unduly delayed its efforts to enforce the consent decree. McKeon 

discovered Honeywell’s sales of its MAX-brand earplugs on Amazon in September 2017. It 

promptly emailed Honeywell, asking its competitor to cease and desist. McKeon also quickly 

checked other online retailors’ websites to determine whether Honeywell was selling MAXbrand earplugs elsewhere in violation of the consent decree. And it asked Honeywell to end 

those sales too. “Attempts to resolve a dispute without resorting to a court do not constitute 

unreasonable delay for determining the applicability of the doctrine of laches.” Kehoe, 796 F.3d 

at 585.

Once Honeywell refused, McKeon moved to enforce the consent decree a mere six 

months later. In commercial litigation, such a short time can hardly be the “unreasonable, 

prejudicial delay in commencing suit” characteristic of laches. See Petrella, 572 U.S. at 667.

Nor is the time that elapsed between the beginning of the MAX-brand’s online sales and 

McKeon’s discovery of them an unreasonable delay. Although the standard here is constructive 

notice, McKeon has no responsibility to “play policeman” at brick-and-mortar retailers, and it is 

similarly not responsible for policing every corner of the internet. (See R.32-6, Bacou 

Correspondence, PageID 62.) Importantly, Honeywell’s Amazon sales increased by almost 70% 
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 9

from 2016 to 2017. This increased volume led McKeon to discover the violations. Parties 

subject to consent decrees cannot scale their prohibited conduct over time, using minor 

undetected violations to justify later larger infringements. Honeywell simply hasn’t carried its 

burden to show that McKeon should have discovered the breaching conduct before Honeywell 

drastically increased online sales.

Honeywell also fails to show that it was prejudiced by the elapsed time. Honeywell first 

asserts that if it had known that the internet was off-limits for MAX sales, that “would have been 

a significant consideration in Honeywell’s evaluation of [Sperian’s] acquisition.” (Appellant Br. 

at 32.) But that argument fails. 

Honeywell’s conclusory statement says nothing about what it would have done 

differently about the acquisition. To establish prejudice, Honeywell must show reliance on the 

absence of the lawsuit. See United States v. Bolton, 781 F.2d 528, 534 (6th Cir. 1985); Eat Right 

Foods Ltd. v. Whole Foods Mkt., 880 F.3d 1109, 1119 (9th Cir. 2018). It is not enough to say 

that it would have been a significant consideration—which only shows potential reliance. 

Honeywell has not shown how anything about the Sperian acquisition would have changed. 

Merely stating prejudice, without showing how, is not enough. See Depositors Ins., Co. v. Estate 

of Ryan, 637 F. App’x. 864, 871 (6th Cir. 2016) (conclusory allegations are not enough to 

establish prejudice). 

Honeywell’s other argument is that it would have focused its advertising on brick-andmortar stores if it had known it cannot sell online. Maybe. But this argument assumes that 

Honeywell is barred from selling any MAX-brand earplugs online, which is a mistake. McKeon 

concedes that the consent decree is not a total prohibition on selling MAX-brand earplugs online. 

Honeywell may sell MAX-brand earplugs on industrial safety websites. (Id.) 

This leaves the presumption argument. Honeywell argues that it is entitled to a 

presumption that McKeon’s delay was unreasonable and prejudiced it because McKeon brought 

its enforcement action outside of the analogous statute of limitations. We disagree. 

Although Bergmann clarifies that we apply laches here and not a statute of limitations, 

that does not mean that the latter is irrelevant. Generally, when applying laches, courts will look 
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 10

to the analogous statute of limitations to determine whether a delay was unreasonable or 

prejudicial. See, e.g., Cunningham v. Interlake S.S. Co., 567 F.3d 758, 761-62 (6th Cir. 2009); 

Tandy Corp. v. Malone & Hyde, Inc., 769 F.2d 362, 365 (6th Cir. 1985). If a plaintiff asserts a 

claim within the statutory period, there is a strong presumption that the claim is timely and not 

prejudicial. Id. The defendant then must rebut that presumption. Id. But, if the plaintiff asserts 

the claim beyond the statutory period, it is presumed unreasonable and prejudicial to the 

defendant. Id. The plaintiff then bears the burden of rebutting the presumption. Id.

Here, McKeon asserted its claim within the statutory period. Courts treat consent decrees 

like contracts. United States v. ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975) (“[A] consent 

decree or order is to be construed for enforcement purposes basically as a contract.”); see also

Bergmann, 665 F.3d at 684. So the most analogous statute of limitations is the one for 

enforcement of a contract. Durking v. Nassau Police Dept., 175 F. App’x 405, 408 (2d Cir. 

2006) (holding that the “most closely analogous state statute of limitations” for enforcing a 

consent decree is “the six-year statute of limitations for contracts . . . .”); see also CMACO 

Automotive Systems v. Wanxiang America Corp., 589 F.3d 235, 248 (6th Cir. 2009) (applying 

state statute of limitations for contracts and holding that equitable contract claims are time-barred 

under laches). Under Michigan law, the statute of limitations for contract claims is six years. 

Mich. Comp. Laws § 600.5807(9) (2018); Steward v. Panel, 652 N.W.2d 232, 235 (Mich. Ct. 

App. 2002). 

Honeywell wants us to look at the delay from the first day that it says that the 

MAX-brand earplugs were sold online in 2004. But laches begins to run from the time McKeon 

should have known of the violation—not from when the violation began. See, e.g., Nartron, 305 

F.3d at 409. As we have already explained above that time is 2017, when the sales began to 

spike. McKeon sued in 2018, which is well within the six-year statutory period. So, Honeywell 

is not entitled to a presumption of unreasonableness or prejudice. Laukus v. Rio Brands, Inc., 

391 F. App’x. 416, 420 (6th Cir. 2010) (explaining that the presumption of prejudice to the 

defendant applies only when the plaintiff files suit outside the statute of limitations). In fact, the 
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 11

presumption here favors McKeon’s claim being timely and unprejudicial.3 As McKeon puts it, 

Honeywell “gambled that it found a loophole in the Consent Order” so that it can “exploit the 

Retail Market.” (Appellee Br. at 31.) Honeywell has lost that bet. Laches does not apply to 

these facts. 

V.

We next turn to whether the consent decree bars Honeywell’s online retail sales. Consent 

decrees are interpreted under the contract law of the state in which the parties entered them. 

Evoqua Water, 940 F.3d at 228–29. Our goal is to determine the parties’ intent at the time of the 

decree. Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 477–78 (6th Cir. 2007). This 

construction must take place within the document’s four corners. Alexander, 496 F.3d at 478. 

We cannot “reform the contract to compensate one party for making a bad bargain.” Huguley v. 

Gen. Motors Corp., 67 F.3d 129, 133 (6th Cir. 1995).

This issue boils down to whether a retail website, like Amazon, is a “retail establishment” 

under the Decree. It is. Michigan gives a contract’s undefined terms the plain and ordinary 

meaning that would be apparent to a reader of the instrument. Rory v. Cont’l Ins. Co., 

703 N.W.2d 23, 28 (Mich. 2005). And the plain and ordinary meaning of “retail establishment” 

reaches Amazon and similar websites. First, the consent decree explicitly classifies “mass 

merchandisers”—companies like Walmart, Target, and Meijer—as “retail establishments.” 

(R.32-2, Consent Decree, PageID 32.) Amazon competes directly with these companies. 

Second, and together with “mass merchandisers,” the consent decree lists “sporting goods 

stores,” and the “Drug and Grocery Market” as examples of “retail establishments.” (Id. at 

PageID 30.) Retail shoppers go to each of these places to purchase goods for personal use. They 

do the same on Amazon. Third, “retail establishments” are not limited to brick-and-mortar 

stores. The parties explicitly defined the “Retail Market” as “all retail establishments 

3Honeywell argues that the analogous statute of limitations is the three-year period under Michigan’s 

trademark law. We think this is mistaken. The action here is one to enforce a consent decree. Since courts treat 

consent decrees as contracts, the most analogous statute here is the one governing the enforcement of contracts. See

United States v. ITT Cont’l Baking Co., 420 U.S. 223, 238 (1975) (“[A] consent decree or order is to be construed 

for enforcement purposes basically as a contract.”). But it doesn’t matter because even under the three-year 

statutory period for bringing a trademark claim, McKeon’s claim was still timely for the reasons stated above. 
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 12

including the D[r]ug and Grocery Market, sporting goods stores and mass merchandisers.” (Id.) 

That construction is illustrative, not exhaustive. See Christopher v. SmithKline Beecham Corp., 

567 U.S. 142, 162 (2012). So a retail website is a “retail establishment.”

Concluding that Amazon is a “retail establishment” also makes sense given the parties’ 

intent. Kendzierski v. Macomb County, 931 N.W.2d 604, 612 (Mich. 2019). The consent decree 

enjoins Honeywell from selling its non-MAX-brand earplugs into the “Retail Market.” (R.32-2, 

Consent Decree, PageID 31.) The parties did this “to minimize the likelihood of confusion 

concerning the parties’ respective trademarks by Leight’s sale and marketing of earplugs sold 

under the trademarks ‘MAX’ or ‘MAX-LITE’ in the Retail Market.” (See id. at PageID 31–32.) 

They entered the consent decree to keep MAX-brand earplugs out of the same physical “retail 

establishments” as MACK’S earplugs. So there is no reason that same consent decree would 

allow Honeywell to sell MAX-brand earplugs in online “retail establishments.”

Neither of Honeywell’s arguments to the contrary is persuasive. First, nothing in the 

consent decree limits the term “retail establishments” to brick-and-mortar storefronts. To the 

contrary, “any distributor or supplier” who services the “Drug and Grocery Market” is a “retail 

establishment” by the consent decree’s explicit terms. (Id. at PageID 29–30.)

Second, Honeywell argues that because some manufacturing entities buy supplies on 

Amazon, Amazon is part of the Industrial Supply Market. We reject this argument for two 

reasons. First, the declaration Honeywell entered to establish that manufacturing entities buy 

earplugs on Amazon fails to meet the standard in the consent decree. Honeywell’s declaration 

never states that “manufacturing entities purchase earplugs and other hearing protection for their 

employees’ use” on Amazon. (Compare id. at PageID 30, with R. 61-1, Larkin Decl., PageID 

385 (“Businesses can and do purchase industrial supplies and similar products on 

Amazon.com.”) and id. at PageID 387 (“Beyond industrial supplies, I am also aware that 

companies can and do procure office supplies and other business-related products on 

Amazon.com.”).) So nothing in the record below establishes that Amazon meets the consent 

decree’s definition of “Industrial Safety Market.”
No. 20-2279 McKeon Prods., Inc. v. Howard S. Leight & Assocs., et al. Page 13

More to the point, defining the scope of the “Industrial Safety Market” with declarations 

could have never worked. It was always possible for some manufacturing entities to buy 

supplies at Walmart, for example. But no one could seriously contend a parade of declarations 

by those purchasing entities could remove a retailor like Walmart from the definition of “Retail 

Market.” If a business is a “retail establishment” it simply doesn’t matter that some 

manufacturing entities shop there. (See Appellee’s Br. at 38–39.) Honeywell admitted as much 

to the magistrate judge. (See R.59, Hr’g on Mot. to Enforce, PageID 360.)

Think about it this way. Imagine, the day after the parties signed the consent decree, that 

Honeywell walked into court and presented declarations from manufacturing entities that they 

bought their hearing protection at Walmart and Walgreens. Would this have removed those 

entities from the retail market? Obviously not. Such an approach encourages and rewards bad 

behavior by Honeywell. It effectively redefines the Industrial Safety Market as everywhere 

Honeywell makes MAX-brand earplugs available and then some manufacturing entities buy 

them. McKeon bargained for more than that. 

This leaves us with one loose end to tie up. The consent decree accounts for every 

conceivable sale of Honeywell’s MAX-brand earplugs. It enjoins Honeywell from selling into

the “Retail Market.” But Honeywell remains free to sell in “the Industrial Safety Market or 

elsewhere.” The “or elsewhere” savings clause reserves Honeywell’s ability to sell to non-retail 

business. Might Amazon and other websites fall into the “or elsewhere” clause reserved to 

Honeywell? McKeon argues that this provision contemplates direct sales of MAX-brand 

earplugs to corporate consumers, like hotels, hospitals, or airlines. We agree. That answer fits 

neatly with the other provisions of the consent decree, and it resolves any surplusage problem 

with McKeon’s interpretation.

VI.

For the reasons above, we hold that laches is available to Honeywell as an affirmative 

defense, that it does not apply to these facts, and that McKeon’s interpretation of the consent 

decree is the better reading. We thus AFFIRM the district court. And we REMAND for further 

proceedings consistent with this opinion including the dissolution of the stay.