CONCANNON V. LEGO SYSTEMS, INC.
No. 3:21-CV-01678 (JBA), 2023 WL 2526637 (D. Conn. Mar. 15, 2023)

Outcome: Motion to dismiss - denied

Did Lego commit copyright infringement and trade dress infringement?

it does not show the parties “meeting of the minds” necessary to establish the affirmative defense of an implied nonexclusive license to use Plaintiff's design.

#copyright
#tradedress

A GINORMOUS design patent & trade dress complaint by Yeti: https://www.scribd.com/document/626516147/Yeti-v-Bote-Complaint

#DesignPatents #TradeDress

Some of you might remember that the parties previously litigated this issue in Colorado.

The district court, like the TTAB, concluded that the color pink was functional. https://www.scribd.com/document/335930110/C5-Med-Werks-v-Ceramtec-Order

The 10th Circuit didn't reach the trademark issue because it concluded that the District Court didn't have personal jurisdiction over CeramTec: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110226021.pdf

#CeramTec #PinkHipImplants #Functionality #TradeDress #CivProMatters

CeramTec has appealed its TTAB loss to the Federal Circuit: https://www.scribd.com/document/625729314/CeramTec-GmbH-v-CoorsTek-Bioceramics-LLC-Notice-of-Appeal

CeramTec has trade dress registrations that claim the color pink for use in connection with hip implants.

But it has "sought or obtained additional [utility] patent protection for compositions claiming the beneficial effects of chromia, the chemical that turns the compound pink."

The TTAB held that, in this context, pink is functional & unregistrable

#CeramTec #PinkHipImplants #Functionality #TradeDress

Here's part of the "on the shelf" image from the complaint (I zoomed in a bit to better show the packaging).

Likely to confuse?

CC: @lexlanham @markpmckenna @rtushnet

#TradeDress #Litigation #MartiniGolf

The design patent claim isn't bad but IDK about this trade dress claim.

Admittedly, the bar for visual similarity is lower for trade dress infringement than it is in design patent infringement but these claimed shapes just seem really different.

#DesignPatents #TradeDress #Litigation #MartiniGolf

Martini Golf v. Golf Gifts & Gallery - New design patent & trade dress case over golf tees: https://design-law.tumblr.com/post/707240335058878464/do-these-golf-tees-infringe-this-design-patent

#DesignPatents #TradeDress #Litigation #MartiniGolf

"While Thom Browne commonly features four horizontal stripes on its apparel, [Adidas' counsel] said the difference in the number of stripes doesn't matter..."

Nice overview of the Adidas versus Thom Browne trial: https://www.law360.com/ip/articles/1562105?nl_pk=fd062d42-234e-4b6a-b9b5-4052fd7ef7ac&

Adidas seriously seems to think it owns the concept of stripes on clothing. And trademark law lets it try all of these claims (which vary quite a bit in strength, IMHO).

This is another reason we should #AbolishTradeDress

#TradeDress #FashionLaw #Litigation

"While Thom Browne commonly features four horizontal stripes on its apparel, [Adidas' counsel] said the difference in the number of stripes doesn't matter..."

Nice overview of the Adidas versus Thom Browne trial: https://www.law360.com/ip/articles/1562105?nl_pk=fd062d42-234e-4b6a-b9b5-4052fd7ef7ac&

Adidas seriously seems to think it owns the concept of stripes on clothing. And trademark law lets it try all of these claims (which vary quite a bit in strength, IMHO).

This is another reason we should #AbolishTradeDress

#TradeDress #FashionLaw #Litigation

Thanks to the good people at Globefill for reminding me that their cases exist, just when I'm collecting discussion examples for my (all-new, totally revamped) Design Law class.

https://design-law.tumblr.com/post/159042808931/do-these-hot-sauce-bottles-infringe-this-design

#DesignPatents #TradeDress #Copyright #LawProfs

Dan Aykroyd's Globefill Inc. has filed yet another copyright, trade dress & design patent complaint against a competitor in the skull-shaped bottle business: https://design-law.tumblr.com/post/705333447183532032/does-this-decanter-infringe-this-design-patent

The design patent infringement claims here seem to be significantly less terrible than those Globefill has filed in the past, when Globefill seemed to be falling victim to the #ConceptFallacy:

- https://design-law.tumblr.com/post/103038137896/do-these-bottles-infringe-this-design-patent

- https://design-law.tumblr.com/post/159042808931/do-these-hot-sauce-bottles-infringe-this-design

#DesignPatents #Copyright #TradeDress #Litigation

It's worth noting that the patents here were utility patents, not design patents.

I hope someday courts take the public-domain-robbing issue as seriously with visual inventions as they do with useful inventions.

#Trademarks #TradeDress #Litigation #Functionality #FashionLaw

As summarized by John Welch on his TTABlog:

"TBL's secondary meaning survey evidence was seriously flawed: first, the stimuli used in the survey were photographs of the TBL boot, not the drawings from the trademark application; second, the survey did not use 'the tried-and-true accepted questions and progression deemed key to determining acquired distinctiveness;' and third, the control looked nothing like TBL's boot."

#Trademarks #TradeDress #Litigation #AcquiredDistinctiveness #FashionLaw

"Most of the issued patents cited in this brief have expired, meaning that the disclosed features are in the public domain. To conclude that [Timberland] can strip the public's right to copy and benefit from these features today would be antithetical to the pro-competitive objectives of both trademark and patent law."

TBL Licensing v. Vidal, 2022 WL 17573906, at *5 (E.D. Va. Dec. 8, 2022).

h/t @ TTABlog: http://thettablog.blogspot.com/2022/12/ed-va-affirms-ttab-timberland-boot.html

#Trademarks #TradeDress #Litigation #Functionality #LimitedTimes

"Most of the issued patents cited in this brief have expired, meaning that the disclosed features are in the public domain. To conclude that [Timberland] can strip the public's right to copy and benefit from these features today would be antithetical to the pro-competitive objectives of both trademark and patent law."

TBL Licensing v. Vidal, No. 1:21CV681, 2022 WL 17573906, at *5 (E.D. Va. Dec. 8, 2022).

h/t @ TTABlog: http://thettablog.blogspot.com/2022/12/ed-va-affirms-ttab-timberland-boot.html

#Trademarks #TradeDress #Litigation #Functionality

In prior litigation, CeramTec tried to argue that (at least some of) the patents weren't a problem because they covered both pink and not-pink embodiments: https://www.scribd.com/document/371204153/C5-Medical-Werks-v-CeramTec-Appellant-Brief

But the 10th Circuit didn't get to that issue because it concluded the district court lacked personal jurisdiction over CeramTec: https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110226021.pdf

#TradeDress #DesignLaw #Functionality #PinkHipImplants #Patents

How can pink be functional, you ask? Basically, the pink comes from chromium oxide, which makes the implants harder, tougher, stronger.

Indeed, CeramTec "has sought or obtained additional patent protection for compositions claiming the beneficial effects of chromia, the chemical that turns the compound pink."

#TradeDress #DesignLaw #Functionality #PinkHipImplants #Patents

The Saga of the Pink Hip Implants continues:

The TTAB has granted petitions to cancel U.S. Trademark Registrations No. 4319095 & 4319096 as functional. http://ttabvue.uspto.gov/ttabvue/ttabvue-92058781-CAN-171.pdf

I assume CeramTec will appeal.

H/t TTABlog: https://thettablog.blogspot.com/2022/12/ttab-grants-petitions-for-cancellation.html

#TradeDress #DesignLaw #Functionality #PinkHipImplants

Striking: The Federal Circuit writes a whole paragraph about the role of alternative designs in the #TradeDress #Functionality analysis and doesn't mention TrafFix once.

SoClean v. Sunset Healthcare Solutions, http://cafc.uscourts.gov/opinions-orders/21-2311.OPINION.11-9-2022_2031039.pdf

Interesting post on a recent #TradeDress case over on PatentlyO: https://patentlyo.com/patent/2022/11/product-presumption-validity.html

#Trademarks #Functionality #DesignLaw