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Presenting a live 90-minute webinar with interactive Q&A
Functionality in Trade Dress Prosecution
and Litigation: Protecting the Look and
Feel of Products and Packaging
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
WEDNESDAY, DECEMBER 14, 2016
Theodore H. Davis, Jr., Partner, Kilpatrick Townsend & Stockton, Atlanta
Darius C. Gambino, Partner, DLA Piper LLP (US), Philadelphia
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Functionality in Trade Dress
Prosecution and Litigation: Protecting
the Look and Feel of Products and
Packaging
Theodore H. Davis Jr.
Kilpatrick Townsend & Stockton LLP
Trade Dress
Prosecution
This Court ... has explained that, “[i]n general terms,
a product feature is functional,” and cannot serve as
a trademark, “if it is essential to the use or purpose
of the article or if it affects the cost or quality of the
article,” that is, if exclusive use of the feature would
put competitors at a significant non-reputation-
related disadvantage.
Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165
(1995) (quoting Inwood Labs. v. Ives Labs., 456 U.S. 844,
851 n.10 (1982)).
Functionality in the Prosecution Context
6
Trade Dress
Prosecution In re Morton-Norwich Prods., Inc., 671 F.2d 1332
(C.C.P.A. 1982)
7
Trade Dress
Prosecution
• it clarifies the relationship between utility and
functionality;
• it distinguishes between the related, but
different, concepts of de facto functionality and
de jure functionality; and
• it introduces the four Morton-Norwich factors.
Morton-Norwich is significant for three reasons:
Functionality in the Prosecution Context
8
Trade Dress
Prosecution
From the earliest cases, “functionality” has been
expressed in terms of “utility.” In 1930, this court
stated it to be “well settled that the configuration of
an article having utility is not the subject of trade-
mark protection.”
Morton-Norwich, 671 F.2d at 1338 (emphasis omitted)
(quoting In re Dennison Mfg. Co., 39 F.2d 720, 721
(C.C.P.A. 1930)).
Functionality in the Prosecution Context
9
Trade Dress
Prosecution In re Weber-Stephen Prods. Co., 184 U.S.P.Q. 509
(T.T.A.B. 1974)
10
Trade Dress
Prosecution
[T]he prime and salient consideration in this case [is]
whether the configuration in question is essentially
functional or utilitarian in character.... [I]f it is
essentially functional or utilitarian in character, it is
clear ... that a proprietary or legal right, which is a
basic requirement for registration, cannot attach
thereto.
Weber-Stephen Prods. Co., 184 U.S.P.Q. at 511.
Functionality in the Prosecution Context
11
Trade Dress
Prosecution In re Reddi-Wip, Inc., 150 U.S.P.Q. 213 (T.T.A.B. 1966)
12
Trade Dress
Prosecution
[E]verything that distinguishes one’s goods is not,
per se, a trademark. That is to say, there are certain
things, such as configurations and devices which are
in essence utilitarian and which may not function as
trademarks regardless of the fact that they may
distinguish one’s goods.
Reddi-Wip, 150 U.S.P.Q. at 214 (internal quotation marks
omitted).
Functionality in the Prosecution Context
13
Trade Dress
Prosecution In re Deister Concentrator Co., 289 F.2d 496 (C.C.P.A.
1961)
14
Trade Dress
Prosecution
A feature dictated solely by “functional” (utilitarian)
considerations may not be protected as a trademark;
but mere possession of a function (utility) is not
sufficient reason to deny protection.
Deister Concentrator Co., 289 F.2d at 502.
Functionality in the Prosecution Context
15
Trade Dress
Prosecution In re Oscar Mayer & Co., 189 U.S.P.Q. 295 (T.T.A.B.
1975)
16
Trade Dress
Prosecution
[T]he fact that a configuration may possess some
utility or function is not sufficient to deny protection if
it is otherwise entitled thereto.
Oscar Mayer & Co., 189 U.S.P.Q. at 296.
Functionality in the Prosecution Context
17
Trade Dress
Prosecution
[I]f the designation “functional” is to be utilized to
denote the legal consequence, we must speak in
terms of de facto functionality and de jure
functionality, the former being the use of “functional”
in the lay sense, indicating that although the design
... is directed to performance of a function, it may be
legally recognized as an indication of source. De
jure functionality, of course, would be used to
indicate the opposite-such a design may not be
protected as a trademark.
Morton-Norwich, 671 F.2d at 1337.
Functionality in the Prosecution Context
18
Trade Dress
Prosecution
Assuming [this court’s prior 1930 opinion in
Dennison Mfg.] intended [to invalidate the rights to
any] article whose configuration “has utility,” its
statement is ... too broad. Under that reasoning, the
design of a particular article would be protectable as
a trademark only where the design was useless, that
is, wholly unrelated to the function of the article.
Morton-Norwich, 671 F.2d at 1338.
Functionality in the Prosecution Context
19
Trade Dress
Prosecution
[F]unctionality is determined in light of utility, which is
determined in light of superiority of design, and rests
upon the foundation essential to effective
competition ....
Morton-Norwich, 671 F.2d at 1340.
Functionality in the Prosecution Context
20
Trade Dress
Prosecution
• the disclosure of a related utility patent;
The four Morton-Norwich factors:
Functionality in the Prosecution Context
21
Trade Dress
Prosecution TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23
(2001)
22
Trade Dress
Prosecution
Results of past litigation involving the TrafFix patents:
• closely spaced springs do not literally infringe the
patents; but
• closely spaced springs do infringe the patents
under the doctrine of equivalents.
See Sarkisian v. Winn-Proof Corp., 203 U.S.P.Q. 60 (D.
Or. 1978), aff’d, 697 F.2d 1313 (9th Cir. 1983).
Functionality in the Prosecution Context
23
Trade Dress
Prosecution TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23
(2001)
24
Trade Dress
Prosecution
The Court … held that if the trade dress was the
subject of an expired utility patent and disclosed in
the patent claims, there is a strong evidentiary
presumption that the trade dress falls ... is therefore
functional.
Robert G. Bone, Enforcement Costs and Trademark
Puzzles, 90 Va. L. Rev. 2099, 2164 n.190 (2004).
Functionality in the Prosecution Context
25
Trade Dress
Prosecution
[L]argely because of concerns about the potential for
trade dress protection to extend the patent period,
the Court held that expired utility patents give rise to
a strong presumption of functionality.
Mark P. McKenna, The Rehnquist Court and the
Groundwork for Greater First Amendment Scrutiny of
Intellectual Property, 21 Wash. J. L & Policy 11, 16 (2006).
Functionality in the Prosecution Context
26
Trade Dress
Prosecution
A utility patent is strong evidence that the features
therein claimed are functional. If trade dress
protection is sought for those features the strong
evidence of functionality based on the previous
patent adds great weight to the statutory
presumption that features are deemed functional
until proved otherwise by the party seeking trade
dress protection.
TrafFix Devices, 532 U.S. at 29-30.
Functionality in the Prosecution Context
27
Trade Dress
Prosecution
In a civil action for trade dress infringement under
this chapter for trade dress not registered on the
principal register, the person who asserts trade
dress protection has the burden of proving that the
matter sought to be protected is not functional.
Section 43(a)(3) of the Lanham Act, 15 U.S.C.
§ 1125(a)(3) (2012).
Functionality in the Prosecution Context
28
Trade Dress
Prosecution
[E]ven if there has been no previous utility patent the
party asserting trade dress has the burden to
establish the nonfunctionality of alleged trade dress
features.
TrafFix Devices, 532 U.S. at 31 (emphasis added).
Functionality in the Prosecution Context
29
Trade Dress
Prosecution
• it may be strong factual evidence of functionality,
but it does not create a presumption of
functionality, see TrafFix Devices, 532 U.S. at 29-
30;
• its entire disclosure, and not just its claims, can
weigh in favor of functionality, see, e.g., In re
Dietrich, 91 U.S.P.Q.2d 1622, 1627 (T.T.A.B.
2009);
• it need not be owned by the claimant to be
relevant, see, e.g., In re Virshup, 42 U.S.P.Q.2d
1403, 1405 (T.T.A.B. 1997); and
The significance of a related utility patent:
Functionality in the Prosecution Context
30
Trade Dress
Prosecution
• it need not actually have issued for the
disclosure of the application to be evidence of
functionality, see, e.g., Valu Eng’g, Inc. v.
Rexnord Corp., 278 F.3d 1268, 1279 (Fed. Cir.
2002); but
• the patent’s disclosure nevertheless can be
distinguished. See, e.g., In re Weber-Stephen
Prods. Co., 3 U.S.P.Q.2d 1659, 1664 (T.T.A.B.
1987).
The significance of a related utility patent:
Functionality in the Prosecution Context
31
Trade Dress
Prosecution In re Weber-Stephen Prods. Co., 3 U.S.P.Q.2d 1659
(T.T.A.B. 1987)
32
Trade Dress
Prosecution
While the drawings in the patent show a cooking grill
with a round bowl, supported on a tripod leg
arrangement, nothing in the patent discloses any
utilitarian advantages of this particular design.
Weber-Stephen Prods. Co., 3 U.S.P.Q.2d at 1664.
Functionality in the Prosecution Context
33
Trade Dress
Prosecution
In a case where a manufacturer seeks to protect
arbitrary, incidental, or ornamental aspects of
features of a product found in the patent claims,
such as arbitrary curves in the legs or an ornamental
pattern painted on the springs, a different result
might obtain. There the manufacturer could perhaps
prove that those aspects do not serve a purpose
within the terms of the utility patent.
TrafFix Devices, 532 U.S. at 34.
Functionality in the Prosecution Context
34
Trade Dress
Prosecution
• the disclosure of a related utility patent;
• advertising materials in which the claimant touts
the design’s utilitarian advantages;
The four Morton-Norwich factors:
Functionality in the Prosecution Context
35
Trade Dress
Prosecution
• a claimant whose advertising historically has
stressed the functional advantages of its design
is likely to face an uphill battle in establishing
nonfunctionality, see, e.g., In re Becton,
Dickinson & Co., 675 F.3d 1368, 1375-76 (Fed.
Cir. 2012); but
The significance of a claimant’s advertising:
Functionality in the Prosecution Context
36
Trade Dress
Prosecution In re Becton, Dickinson & Co., 675 F.3d 1368 (Fed. Cir.
2012)
37
Trade Dress
Prosecution In re Becton, Dickinson & Co., 675 F.3d 1368 (Fed. Cir.
2012)
38
Trade Dress
Prosecution
• a claimant whose advertising historically has
stressed the functional advantages of its design
is likely to face an uphill battle in establishing
nonfunctionality, see, e.g., In re Becton,
Dickinson & Co., 675 F.3d 1368, 1375-76 (Fed.
Cir. 2012); but
• such a claimant’s advertising may not
necessarily carry the day, particularly at the
summary judgment stage, see. e.g., In re
Ovation Instruments, Inc., 201 U.S.P.Q. 116,
123 (T.T.A.B. 1978);
The significance of a claimant’s advertising:
Functionality in the Prosecution Context
39
Trade Dress
Prosecution
• the absence of claims of functional advantage
for a particular design may be evidence of
nonfunctionality, see, e.g., In re Zippo Mfg. Co.,
50 U.S.P.Q.2d 1852, 1854 (T.T.A.B. 1999); and
• even if functional claims are made for a design
as a whole, they may receive less weight if they
do not relate to the particular characteristics
claimed as trade dress. See, e.g., In re Weber-
Stephens Prods. Co., 3 U.S.P.Q.2d 1659, 1664-
65 (T.T.A.B. 1987).
The significance of a claimant’s advertising:
Functionality in the Prosecution Context
40
Trade Dress
Prosecution
• the disclosure of a related utility patent;
• advertising materials in which the claimant touts
the design’s utilitarian advantages;
• the availability of alternative designs; and
The four Morton-Norwich factors:
Functionality in the Prosecution Context
41
Trade Dress
Prosecution
• in TrafFix, the Supreme Court suggested that if
a feature is functional in the utilitarian sense,
there is no need to examine whether alternative
configurations are available to the defendant,
see 532 U.S. at 33;
• the Federal Circuit has largely ignored this
aspect of TrafFix, see Valu Eng’g, Inc. v.
Rexnord Corp., 278 F.3d 1268, 1276 (Fed. Cir.
2002); which means
The significance of alternative designs:
Functionality in the Prosecution Context
42
Trade Dress
Prosecution
[T]he [Supreme] Court merely noted once a product
feature is found functional based on other
considerations there is no need to con-sider the
availability of alternative designs, because the
feature cannot be given trade dress protection
merely because there are alternative designs
available. But that does not mean that the availability
of alternative designs cannot be a legitimate source
of evidence of evidence of whether a feature is
functional in the first place.
Valu Eng’g, 278 F.3d at 1276.
Functionality in the Prosecution Context
43
Trade Dress
Prosecution
• the availability of alternative designs can still
weigh in favor of nonfunctionality in the
registration context, see, e.g., In re Zippo Mfg.
Co., 50 U.S.P.Q.2d 1852 (T.T.A.B. 1999); but
• a claimant’s proffered alternative designs must
indeed be alternative, i.e., distinguishable from
the original, see, e.g., Greenhouse Sys., Inc. v.
Carson, 37 U.S.P.Q.2d 1748, 1754 (T.T.A.B.
1995); and
The significance of alternative designs:
Functionality in the Prosecution Context
44
Trade Dress
Prosecution
• the alternative designs must work as well, and
at an equivalent cost, as that of the claimant to
support a finding of nonfunctionality. See, e.g.,
Kistner Concrete Prods. Inc. v. Contech Arch
Techs. Inc., 97 U.S.P.Q.2d 1912, 1929 (T.T.A.B.
2011).
The significance of alternative designs:
Functionality in the Prosecution Context
45
Trade Dress
Prosecution
• the disclosure of a related utility patent;
• advertising materials in which the claimant touts
the design’s utilitarian advantages;
• the availability of alternative designs; and
• facts indicating that the design results in a
comparatively simple or cheap method for
manufacturing the product.
The four Morton-Norwich factors:
Functionality in the Prosecution Context
46
Trade Dress
Prosecution
• If a plaintiff’s claimed trade dress is a direct
result of an efficient manufacturing process, this
factor will weigh in favor of a finding of
functionality, see, e.g., In re Peters, 6
U.S.P.Q.2d 1390, 1392 (T.T.A.B. 1988); but
• evidence that alternative configurations are
cheaper to produce than the plaintiff’s claimed
trade dress weighs in favor of a finding of
nonfunctionality. See, e.g., In re Honeywell Inc.,
8 U.S.P.Q.2d 1600, 1604 (T.T.A.B. 1988).
The significance of manufacturing efficiencies:
Functionality in the Prosecution Context
47
Trade Dress
Prosecution
• the existence of a related design patent; and
Two additional factors coming into play in the registration
context are:
Functionality in the Prosecution Context
48
Trade Dress
Prosecution
• it is not evidence of functionality, see, e.g., In re
World’s Finest Chocolate, Inc., 474 F.2d 1012,
1015 (C.C.P.A. 1973); and, indeed,
• it can be evidence of nonfunctionality, see, e.g.,
In re Honeywell Inc., 8 U.S.P.Q.2d 1600, 1603
(T.T.A.B. 1988); but
The significance of a design patent:
Functionality in the Prosecution Context
49
Trade Dress
Prosecution
It is interesting to note that appellant ... owns [a]
design patent ...for the design in issue, which, at
least presumptively, indicates that the design is not
de jure functional.
In re Morton-Norwich Prods. Inc., 671 F.2d 1332, 1342 n.3
(C.C.P.A. 1982).
Functionality in the Prosecution Context
50
Trade Dress
Prosecution
• it is not evidence of functionality, see, e.g., In re
World’s Finest Chocolate, Inc., 474 F.2d 1012,
1015 (C.C.P.A. 1973); and, indeed,
• it can be evidence of nonfunctionality, see, e.g.,
In re Honeywell Inc., 8 U.S.P.Q.2d 1600, 1603
(T.T.A.B. 1988); but
• it is “not alone sufficient evidence,” In re Am.
Nat’l Can Co., 41 U.S.P.Q.2d 1842, 1843
(T.T.A.B. 1997); and
The significance of a design patent:
Functionality in the Prosecution Context
51
Trade Dress
Prosecution
• the drawing of the design patent must match up
to the claimant’s design in the marketplace to
have any evidentiary significance. See, e.g., In
re Becton, Dickinson & Co., 675 F.3d 1368,
1375 (Fed. Cir. 2012).
The significance of a design patent:
Functionality in the Prosecution Context
52
Trade Dress
Prosecution In re Becton, Dickinson & Co., 675 F.3d 1368 (Fed. Cir.
2012)
53
Trade Dress
Prosecution
• the existence of a related design patent; and
• the claimant’s intent.
Two additional factors coming into play in the registration
context:
Functionality in the Prosecution Context
54
Trade Dress
Prosecution
• the adoption of a design with an intent that it
serve as a protectable trade dress can be
probative evidence of nonfunctionality, see, e.g.,
In re Jockey Int’l, Inc., 192 U.S.P.Q. 579, 582
(T.T.A.B. 1976); but
The significance of the claimant’s intent:
Functionality in the Prosecution Context
55
Trade Dress
Prosecution In re Jockey Int’l, Inc., 192 U.S.P.Q. 579 (T.T.A.B. 1976)
56
Trade Dress
Prosecution In re Mars Inc., 105 U.S.P.Q.2d 1859 (T.T.A.B. 2013)
57
Trade Dress
Prosecution
• the adoption of a design with an intent that it
serve as a protectable trade dress can be
probative evidence of nonfunctionality, see, e.g.,
In re Jockey Int’l, Inc., 192 U.S.P.Q. 579, 582
(T.T.A.B. 1976); but
• the Board has more recently held that “whether
[an] applicant’s ‘primary’ purpose or intent in
settling upon [its] design was source
identification is beside the point.” In re Mars Inc.,
105 U.S.P.Q.2d 1859, 1865 (T.T.A.B. 2013).
The significance of the claimant’s intent:
Functionality in the Prosecution Context
58
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 60
Functionality In Trade Dress
Prosecution & Litigation
Protecting The Look And Feel Of Products
And Packaging
Strafford Publications Webinar
Wednesday, December 14th, 2016, 1:00-2:30PM
Darius C. Gambino
[email protected] Copyright 2016 © Darius C. Gambino All Rights Reserved.
Why Protect Trade Dress?
The past six (6) years have seen a significant increase in
complaints that include trade dress counts.
The publicity garnered by the Apple v. Samsung litigation and
various other cases involving design patents and trade dress will
likely increase the use of trade dress as a means of resolving
disputes.
Trade dress litigation has strong appeal over utility patent litigation
due to lower overall cost to trial.
Pro: No claim construction hearing; no infringement or invalidity
contention proceedings; no significant technical issues requiring
expert testimony.
Con: Need to show confusion, secondary meaning, non-
functionality.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 61
Types of Functionality
Trade dress is functional where it: (1) is ‘essential to the use or
purpose of the product or if it affects the cost or quality of the
device,’ or (2) provides a ‘significant non-reputational-related
advantage.’
Utilitarian Functionality: Use/Purpose or Cost/Quality
9th Circuit Disc Golf test:
(1) whether the design yields a utilitarian advantage;
(2) whether alternative designs are available;
(3) whether advertising touts the utilitarian advantages of the
design, and
(4) whether the particular design results from a comparatively
simple or inexpensive method of manufacture.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 62
Types of Functionality
Aesthetic Functionality: Significant Non-Reputational Advantage
Louboutin: “a mark is aesthetically functional, and therefore
ineligible for protection under the Lanham Act, where protection of
the mark significantly undermines competitors’ ability to compete in
the relevant market.” Christian Louboutin S.A. v. Yves Saint Laurent
America Holding, Inc., 696 F.3d 206 (2d Cir. 2012).
The 2nd, 7th and 10th Circuits have all applied the AF doctrine in
recent years, and the position of the 1st, 4th, 8th, and D.C. Circuits on
the doctrine is unclear. The 3rd, 5th, 6th, 9th, 11th, and Federal
Circuits have all, for the most part, rejected the doctrine’s
application in trade dress cases.
So let’s take a look at how litigants have fared in trade dress cases
by Circuit.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 63
1st
Circuit (Maine, N. Hampshire,
Rhode Island, Mass. & Puerto Rico)
Bern Unlimited v. Burton et al. (Dist. Massachusetts 2011)
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 64
Bern “Baker” helmet Burton “Red Mutiny” helmet
Bern Unlimited v. Burton et al.
(D.Mass 2011)
Bern filed a Complaint alleging design patent infringement related
to its “Baker” snowboard helmets naming defendants including
Burton, Vans, Smith Optics and Easton-Bell (Bell).
A few months into the case, Bern dropped the design patent claim
in favor of a trade dress infringement claim.
The defendants all filed motions for summary judgment that the
“Baker” trade dress was functional, but the court denied the
motions.
The defendant then file motions for summary judgment of
invalidity, and the court found the claimed trade dress lacked
secondary meaning.
Verdict: Utilitarian functionality is a viable defense in the 1st
Circuit, but courts will likely let close questions go to trial.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 65
1st
Circuit (Maine, N. Hampshire,
Rhode Island, Mass. & Puerto Rico)
Recent case: Keds LLC v. Vans Inc. (Dist. Mass. 2014) – Keds
filed a complaint alleging trade dress infringement in a blue
square as applied to the heel of sneakers. Vans counterclaimed
alleging the ‘blue square’ trade dress was functional.
Parties stipulated to dismiss in Jan. 2015, presumably with Vans
halting use of the blue square.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 66
2nd
Circuit (New York, Connecticut,
Vermont)
Kwik Lok Corp. v. Schutte Bagclosures, Inc. (SDNY 2012)
KL held registration for bag closure (U.S. Reg. 1,972,043)[left]; KL
also claimed that a slightly different design called the “J-NRP”
[middle] was also covered by the ‘043 Registration; SBI copied the
design of the J-NRP with its ‘Clipps G Series’. [right]
SBI argued that the KL registered trade dress was functional.
The Court agreed (after a 5-day bench trial).
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 67
2nd
Circuit (New York, Connecticut,
Vermont)
The USPTO addressed functionality during prosecution of the
‘043 Registration, but prior to the 2001 Supreme Court decision
in TrafFix Devices.
Court: “the shape of Kwik Lok’s asserted trade dress is the
strongest available shape and clearly affects the quality of the
closure.”
Court: “the utilitarian advantages of Kwik Lok’s claimed trade
dress configurations are disclosed in the utility patents that Kwik
Lok has obtained over the past five decades…”
Court: “[A]pplying the TrafFix analysis, the [KL] design…is
functional because it affects the cost and quality of the product…”
KL has appealed to 2nd Circuit (Aug. 9, 2016)
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 68
2nd
Circuit (New York, Connecticut,
Vermont)
Also note that ‘aesthetic functionality’ is a viable defense in the
2nd Circuit. See Christian Louboutin S.A. v. Yves Saint Laurent
America Holding, Inc., 696 F.3d 206 (2d Cir. 2012).
“… a mark is aesthetically functional, and therefore ineligible for
protection under the Lanham Act, where protection of the mark
significantly undermines competitors' ability to compete in the
relevant market.”
But what is significant?
The Louboutin court found that the red sole was not aesthetically
functional.
Verdict: Functionality (both utilitarian and aesthetic) should be a
concern for plaintiffs in the 2nd Circuit; but see Vox Amplification
(granting injunction for guitar body trade dress).
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 69
3rd
Circuit (Pennsylvania, N. Jersey,
Delaware, Virgin Islands)
Adams Mfg. Corp. v. Rea (WDPA 2012)
AMC sought registration of suction cup with
concentric rings as trade dress; the USPTO
denied registration; AMC brought a District Court
action for further review of the USPTO decision.
“the light diffusing two-ring suction cup is
functional and not eligible for registration as a
trademark…”
AMC had an expired utility patent covering the
same design [strong evidence), had touted
functional benefits in advertising, had chosen the
design for a specific functional purpose (to
diffuse light).
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 70
3rd
Circuit (Pennsylvania, N. Jersey,
Delaware, Virgin Islands)
Sweet Street Desserts, Inc. v. Chudleigh’s
(E.D. Pennsylvania 2012) – incontestable
trade dress registration for the shape of an
apple turnover found functional, and
summary judgment granted to alleged
infringer.
Court found that apple turnover shape met
both the test for utilitarian functionality
and aesthetic functionality.
3rd Circuit affirmed the functionality findings
on appeal.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 71
3rd
Circuit (Pennsylvania, N. Jersey,
Delaware, Virgin Islands)
The District Court quickly dismissed an analogy by plaintiff to the
Coke bottle shape, by noting a “lower standard of protectability”
for product packaging (Coke bottle) vs. product configuration
(turnover shape)
This was error – the only difference is when secondary meaning
must be affirmatively proven, and the plaintiff’s registration was
incontestable on secondary meaning; not addressed by 3rd
Circuit.
Verdict: Functionality has not fared well for plaintiffs in the 3rd
Circuit.
Compare: AstraZeneca AB v. Dr. Reddy’s Labs (D. Del 2015) –
Motion for Temporary Restraining Order granted to prevent
defendant from selling a purple-colored pill.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 72
4th
Circuit (Maryland, Virginia, W.
Virginia, N. Carolina, S. Carolina)
McAirlaids v. Kimberly-Clark (W.D. Virginia 2012)
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 73
McAirlaids Registration K-C “GoodNites” Pads
4th
Circuit (Maryland, Virginia, W.
Virginia, N. Carolina, S. Carolina)
McAirlaids filed a complaint alleging infringement of registered
trade dress in incontinence pads in November 2012.
In July 2013, summary judgment was granted to Kimberly-Clark,
and the trade dress registration at issue canceled based on
evidence of advertising touting functionality and utility patents
on the same product.
In June 2014, the Fourth Circuit vacated the lower court’s
summary judgment ruling and remanded, finding that disputed
issues of fact should have precluded a finding that the trade
dress was functional.
In March 2015, the parties settled on undisclosed terms.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 74
4th
Circuit (Maryland, Virginia, W.
Virginia, N. Carolina, S. Carolina)
Gildan USA Inc. v. Dillard's, Inc. (WDNC 2014)
Gildan claimed common law trade dress rights
in the packaging for its GOLDTOE socks.
“(1) a colored band with contrasting white or
gold lettering…(2) a rectangle of contrasting
color in the upper-right…(3) side panels which
incorporate the color gold.”
Preliminary Injunction denied due to finding
that claimed trade dress would likely be found
functional at trial.
Verdict: It may be difficult for a defendant to
obtain summary judgment based on utilitarian
functionality in the 4th Circuit, but preliminary
injunctions should also be rare.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 75
5th
Circuit (Texas, Louisiana,
Mississippi)
T-Mobile v. Aio Wireless (S.D. Texas 2013)
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 76
T-Mobile Aio Wireless
5th
Circuit (Texas, Louisiana,
Mississippi)
T-Mobile filed a complaint alleging infringement of its ‘magenta’
trade dress (registered on the Supplemental Register)
U.S. Trademark Reg. No. 3,263,625: “The color(s) magenta
is/are claimed as a feature of the mark. The mark consists of the
color magenta alone, which is the approximate equivalent of
Pantone Matching System, Rhodamine Red U, used on the
background of product displays and advertisements found in a
store…”
Aio was using a color called “Pantone 676C” in connection with
wireless telecommunication services.
In January 2014, the court issued an injunction barring Aio from
using the color, or any similar color. T-Mobile was required to
post a $500,000.00 bond for the injunction.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 77
5th
Circuit (Texas, Louisiana,
Mississippi)
The color magenta is not functional.
A few months after the injunction was entered, Aio changed their
name to Cricket Wireless, and began using a green and black
color scheme.
Shortly thereafter, the parties entered into a Settlement
Agreement and dismissed the case with prejudice.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 78
5th
Circuit (Texas, Louisiana,
Mississippi)
New York Pizzeria, Inc. v. Sydal (S.D. Texas 2013) – Plaintiff
claimed the taste of its pizza, as well as its methods for plating
entrees, were protectable as trade dress.
NYP claimed that its “specially sourced branded ingredients and
innovative preparation and preservation techniques contribute to
the distinctive flavor” of its products.
The court found the flavor functional.
The court also found that NYP had not described the plating
methods in enough detail – all trade dress claims dismissed.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 79
5th
Circuit (Texas, Louisiana,
Mississippi)
Compare:
Clearline v. Cooper (S.D. Texas 2011) –
Injunction granted; jury awarded Plaintiff
approximately $5.86 million in damages.
Cointreau v. Pura Vida (N.D. Texas 2012)
– Injunction granted for Cointreau.
Verdict: Injunctions and large damage
awards are available in the 5th Circuit, and
functionality should not bar reasonable
claims.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 80
6th
Circuit (Michigan, Ohio, Kentucky,
Tennessee)
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Groeneveld Transport Efficiency Inc. v. Lubecore International
Inc. (6th Cir. 2013)
6th
Circuit (Michigan, Ohio, Kentucky,
Tennessee)
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 82
Groeneveld claimed trade dress protection for an automotive
grease pump; jury verdict of $1.2 million
The Sixth Circuit reversed, and instructed the district court to
enter judgment for the defendant Lubecore.
The Sixth Circuit found that the trade dress claimed in the grease
pump was both functional and not infringed by the ‘lookalike’
Lubecore pump.
Judge Helene N. White issued a strong dissent, arguing that the
plaintiff had presented sufficient evidence to support the jury
verdict, had been the “exclusive manufacturer of this style pump
for decades,” and that “the pump’s overall configuration was
designed to look distinctive in the industry rather than due to
functional concerns.”
6th
Circuit (Michigan, Ohio, Kentucky,
Tennessee)
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The Sherwin-Williams Co. v.
Wooster Brush Co. (NDOH 2012)
S-W claimed protection in its Brush
Keeper and Color Code trade dress.
Color Code – colors on brush
packaging signify a specific type of
brush
Brush Keeper – golden yellow
background, small American flag,
etc.
Court found both trade dress to be
not functional (and rejected doctrine
of aesthetic functionality)
6th
Circuit (Michigan, Ohio, Kentucky,
Tennessee)
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Sazerac Company, Inc. v. Intercontinental Packaging Company
(W.D. Kentucky 2014)
6th
Circuit (Michigan, Ohio, Kentucky,
Tennessee)
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Distillers of Buffalo Trace bourbon alleged infringement of trade
dress in bottle and packaging (and name).
The defendant filed a motion to dismiss or transfer for improper
venue, which was denied. The parties settled.
See also: Jack Daniels v. Popcorn Sutton Whiskey (M.D.
Tennessee 2013) – Jack Daniels alleged trade dress
infringement based on Popcorn Sutton’s bottle shape and
packaging for its whiskey, which was similar to the “Old No. 7”
bottle, and used similar white lettering on a black background.
Popcorn Sutton agreed to change its bottle design, and the case
was dismissed by stipulation of the parties.
Verdict: Don’t mess with alcohol bottles in the 6th Circuit, but be
careful of Lubecore.
7th
Circuit (Illinois, Indiana,
Wisconsin)
Dwyer Instruments, Inc. v. Sensocon Inc. (N.D. Indiana 2009)
Dwyer had a trade dress registration (US 3,397,050) on a lens for
a gauge with a domed face, a plurality of horizontal lines and a
raised rectangular portion; Sensocon copied the design.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 86
7th
Circuit (Illinois, Indiana,
Wisconsin)
At summary judgment, the court found that the lens design was not
functional, had acquired distinctiveness, and was infringed by the
Sensocon gauge.
Compare: Ogosport LLC v. Maranda Enterprises LLC (E.D.
Wisconsin 2010) – trade dress claimed in flying disc toy found to be
functional based on trade dress applications and a utility patent
application which were all rejected by the USPTO.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 87
7th
Circuit (Illinois, Indiana,
Wisconsin)
Speare Toools, Inc. v. Klein
Tools, Inc. (E.D. Wisconsin
2013)
Speare claimed trade dress in
“[a] clear plastic disk nested
with a plastic circular outer disk,
wherein the inner circular disk
has a raised plastic portion…”
Court found trade dress
functional – packaging was
cheaper to produce, stronger,
more appealing to
customers/retailers
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 88
7th
Circuit (Illinois, Indiana,
Wisconsin)
Toyo Tire v. Atturo Tire et al. (N.D. Illinois
2014) - Toyo filed a design patent and trade
dress infringement action over tire tread
designs in January 2014. Atturo moved for
judgment on the pleadings, arguing that the
tire tread was functional.
Court found tread not functional (at
pleadings stage).
Did the presumption of validity and non-
functionality for the design patent sway the
court (as the trade dress registration did in
Dwyer)?
Verdict: Trade dress registrations are key;
deference will be given to USPTO decisions.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 89
8th
Circuit (Minnesota, Missouri, Iowa,
Arkansas, N. Dakota, S. Dakota, Nebraska)
The Foreign Candy Company v. Promotion in Motion (N.D. Iowa
2012)
The Foreign Candy Company, manufacturers “Watermelon
Wedges” filed a complaint for declaratory judgment of non-
infringement related to Promotion in Motion’s allegations of trade
dress infringement in its watermelon candy with “unusual three-
dimensional trapezoid shape.”
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 90
8th
Circuit (Minnesota, Missouri, Iowa,
Arkansas, N. Dakota, S. Dakota, Nebraska)
In May 2014, the parties reached a settlement, and filed a joint
stipulation of dismissal.
Foreign Candy no longer appears to be offering the “Watermelon
Wedges”.
Verdict: There is not really a large enough sample to predict
trends in the 8th Circuit, but the lack of trade dress precedent
does not show a clear benefit to either plaintiffs and defendants.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 91
9th
Circuit (California, Arizona, Nevada, Oregon,
Washington, Idaho, Montana, Alaska, Guam,
Hawaii, Mariana Islands)
By far, the 9th Circuit sees the most trade dress litigation of any
Circuit, with the California District Courts getting most of the
cases.
Notable Decisions:
Mixed Chicks v. Sally Beauty (C.D. California 2011) – $8.1 million
jury award (including $7.275 million in punitive damages under
California law) and injunction.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 92
9th
Circuit (California, Arizona, Nevada, Oregon,
Washington, Idaho, Montana, Alaska, Guam,
Hawaii, Mariana Islands)
Blumenthal Distributing Inc. dba Office
Star et al. v. Herman Miller Inc. (CDCA
2014)
Jury awarded Herman Miller $8.4 million
in damages after 9 day trial for
infringement of trade dress in “Eames”
office chairs (at right); Blumenthal
cleared on “Aeron” office chairs (below).
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 93
9th
Circuit (California, Arizona, Nevada, Oregon,
Washington, Idaho, Montana, Alaska, Guam,
Hawaii, Mariana Islands)
October 27, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 94
Dogloo, Inc. v. Doskocil Mfg.
(C.D.Cal. 1995) - preliminary
injunction based on claimed
trade dress in igloo-shaped dog
house granted.
Court found dog house trade
dress not functional.
See U.S. Reg. 1,631,630 at left.
Evidence of Function: Utility
patent on same design, touted
function in advertising, superior
thermal qualities, easier to stack
and ship.
9th
Circuit (California, Arizona, Nevada, Oregon,
Washington, Idaho, Montana, Alaska, Guam,
Hawaii, Mariana Islands)
October 27, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 95
Fiji Water v. Fiji Mineral Water
(C.D. Cal. 2010) – injunction for
infringement of trade dress in
bottle shape and appearance.
Court found bottle trade dress
not functional.
See U.S. Regs. 2,911,918 and
2,937,191 at left.
Evidence of Function: Square
shape made bottles easier to
package.
9th
Circuit (California, Arizona, Nevada, Oregon,
Washington, Idaho, Montana, Alaska, Guam,
Hawaii, Mariana Islands)
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 96
Cybergun, S.A. v. JAG Precision
(D.Nev. 2012/9th Cri. 2013) –
preliminary injunction based on
claimed trade dress in firearms
granted; affirmed by 9th Circuit.
District Court found firearm
designs not functional.
Court distinguished Secalt
(traction hoist for large building
window washing) and Leatherman
(Swiss Army knife) as cases
where the products did not identify
“upon sight the [manufacturer] in
question…”.
9th
Circuit (California, Arizona, Nevada, Oregon,
Washington, Idaho, Montana, Alaska, Guam,
Hawaii, Mariana Islands)
Apple Inc. v. Samsung Electronics
Co. (C.D. California 2011) – Apple
awarded $930 million, with about
$400 million of award was
attributable to trade dress and
design patent claims (but that award
is on appeal).
d.light Design v. Boxin Solar (N.D.
California 2013) – Temporary
Restraining Order (TRO) and
preliminary injunction granted
preventing Chinese defendants from
selling various solar lamps infringing
plaintiff's trade dress and design
patents.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 97
9th
Circuit (California, Arizona, Nevada, Oregon,
Washington, Idaho, Montana, Alaska, Guam,
Hawaii, Mariana Islands)
Moldex-Metric Inc. v. McKeon Products
Inc. (CDCA 2013/9th Cir. Mar. 2015)
9th Circuit reversed lower court finding
that green color was functional for
earplugs and remanded for further
consideration.
On March 31, 2016, Judge King granted
summary judgment to McKeon on the
issue of functionality – finding the green
color to be functional.
On April 14, 2016, Moldex filed an
Appeal to the 9th Circuit.
What will the 9th Circuit do?
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 98
Apple v. Samsung
Apple Inc. v. Samsung Electronics Co., Ltd., 786 F.3d 983
(Fed. Cir. May 18, 2015)
Panel: Prost (author), O’Malley, Chen
The CAFC reversed the jury’s finding that Apple’s trade dresses
were protectable, but affirmed the jury’s verdict on design patent
infringement.
Design Patents – Win
Trade Dress - Loss
The reversal on trade dress was based on functionality.
Notably, the CAFC applied 9th Circuit law to trade dress
functionality, and Federal Circuit law to design patent
functionality.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 99
Functionality - Apple v. Samsung
Too Harsh on Trade Dress Functionality?
CAFC: “[T]he Supreme Court and the Ninth Circuit have
repeatedly found product configuration trade dresses functional
and therefore non-protectable. See [TrafFix, Secalt, Disc Golf].”
They have? There are several recent 9th Circuit cases where
product configuration trade dress was found non-functional (Fiji
Water, Mixed Chicks, d.light Design, Cybergun, Dogloo).
CAFC: A registration can’t save a functional trade dress. See
[Talking Rain (bottle design), Tie Tech (cutting tool), Leatherman
(Swiss Army knife)].
It can’t? Again, there are multiple recent 9th Circuit cases
upholding registered trade dress and putting the burden on the
alleged infringer to prove functionality (Fiji Water, Dogloo).
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 100
Functionality - Apple v. Samsung
CAFC: A product feature is non-functional only if “serves no
purpose other than identification” (citing Disc Golf)
Virtually impossible standard to meet as construed by the CAFC
– This is not the law of the 9th Circuit.
Every product feature has some function outside of source
identification (de jure vs. de facto functionality).
The shape of a Coke bottle makes it easier to hold, but that
doesn’t make its impression on the consumer as a source
identifier any less significant.
Verdict: Large damages awards and injunctions are possible in
the 9th Circuit, but examine your trade dress against precedents
carefully - don’t expect to predict the outcome with certainty – 9th
Circuit courts are all over the map when it comes to functionality.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 101
10th
Circuit (Colorado, Utah, N.
Mexico, Wyoming, Kansas, Oklahoma)
Hersheys v. Tincturebelle (Dist. Colorado 2014)
Hersheys filed against seller of legal marijuana candy based on
the seller’s use of Hershey’s trade dress for candy bars.
An example of one product is “Ganja Joy,” which is modeled after
the candy bar “Almond Joy”.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 102
10th
Circuit (Colorado, Utah, N.
Mexico, Wyoming, Kansas, Oklahoma)
The parties settled on mostly undisclosed terms.
The public terms required TinctureBelle to destroy any remaining
packaging, and to refrain from making any false or disparaging
statements about Hershey or its products.
As part of the settlement, TinctureBelle was also barred from
using the term “Reefer” in connection with any candy or edible
products containing peanut butter, and agreed that Hershey will
be entitled to $25,000 per breach if TinctureBelle violates any of
the terms of the settlement.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 103
10th
Circuit (Colorado, Utah, N.
Mexico, Wyoming, Kansas, Oklahoma)
OraLabs Inc. v. The Kind Group LLC et
al. (D. Colo. 2013)
District Court ruled trade dress in
“EOS” lip balm container not
functional.
Container also covered by a design
patent, which was also held not
functional.
Verdict: The 10th Circuit seems
receptive to protecting trade dress, but
hasn’t really faced any hard
functionality issues yet.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 104
11th
Circuit (Florida, Georgia,
Alabama)
Dynamic Designs Distribution Inc. v.
Nalin Manufacturing, LLC (M.D.
Florida 2013)
DDD filed a DJ complaint for non-
infringement and invalidity of the
trade dress claimed by Nalin in a
speaker adapter.
On DDD’s motion for summary
judgment, the court found the
claimed trade dress functional.
The court found Nalin’s previously
filed (and abandoned) design patent
application for the adapter highly
relevant to the functionality inquiry.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 105
11th
Circuit (Florida, Georgia,
Alabama)
The court also noted Nalin’s attempt to register a copyright in the
adapter shape, and the Copyright Office’s rejection of such
application based on functionality, as another reason to find the
claimed trade dress functional.
DDD moved for recovery of its attorney’s fees in defending the
trade dress infringement claim (approximately $37,000), which
the court granted.
In finding the case “exceptional,” the court determined that Nalin
“knew, or should have known, that they were not entitled to trade
dress protection under the Lanham Act and [that] their claim for
trade dress protection was weak to the point of being malicious.”
Verdict: Registrations can be key, but examine your functionality
position carefully to avoid being hit for attorneys’ fees.
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 106
Supreme Court
The Supreme Court has not taken on a trade dress case since
Traffix Devices in 2001.
There are Circuit splits on various other issues, including: (1) the
‘aesthetic functionality’ doctrine, (2) the standard for obtaining
monetary damages, (3) the test to be applied in judging utilitarian
functionality, and (4) standard for proving that a case is
‘exceptional’ for purposes of attorneys’ fees.
Note: The Third Circuit recently adopted the relaxed Octane
Fitness attorneys fees standard (case ‘stands out from others’)
for all Lanham Act cases. See Fair Wind Sailing, Inc. v.
Dempster, 2014 WL 4358471 (3rd Cir. 2014).
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 107
Circuit Takeaways
The 2nd and 9th Circuits see the most trade dress activity, but that
does not necessarily lead to uniformity of decisions.
Preliminary injunctions for trade dress are rare but attainable it is
fairly clear that the defendant copied the products almost exactly,
and was looking to trade on the plaintiff’s goodwill.
Note: The 2nd, 3rd and 9th Circuits have all adopted eBay, and
require a showing of irreparable harm beyond a likelihood of
confusion or dilution.
The 5th Circuit seems most receptive to injunctions, granting relief
in at least three recent cases (Clearline, Cointreau, T-Mobile).
The 2nd Circuit is probably the most defense-friendly, but did
grant a recall and $11.7 million in damages in a recent case
(Audemars Piguet).
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 108
Circuit Takeaways
Plaintiffs:
Obtain registrations before going to court
Assert counterfeiting claims when possible
Do everything you can to get into the 5th Circuit (kidding but not
really)
Defendants:
Always raise functionality and no secondary meaning as defenses
Argue for application of eBay standard for injunctive relief
Play to the court’s prejudices against enforcing trade dress claims in
the presence of other IP (utility patents, design patents, copyrights)
December 14, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 109
Conclusions
Check out Trade Dress:
Evolution, Strategy and
Practice from
Lexis/Nexis.
October 27, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 110
Conclusions
Follow me on Twitter
http://twitter.com/PhillyIP
Questions?
October 27, 2016 Copyright 2016 © Darius C. Gambino All Rights Reserved. 111