News & Analysis as of

Trade Dress

Distillations: Glass Half Full

by Fish & Richardson on

Here at the Distillations Desk we’ve talked about trademark disputes over the shapes of bottles, but now comes a case about the shapes of glasses. On October 12, Glencairn IP Holdings and Glencairn Crystal Studio filed...more

The Cheerios Challenge of Registering Color Marks

by McDermott Will & Emery on

The Trademark Trial and Appeal Board (TTAB) delivered a primer on demonstrating the acquired distinctiveness of product packaging or trade dress, including color marks, in refusing registration of a trademark application for...more

Not All Buffalos Are Alike: Court Finds No Likelihood Of Consumer Confusion Between Bourbon Bottle And Wine Bottle Trade Dress

by Orrick - IP Landscape on

Findings of Fact and Conclusions of Law, Sazerac Co. Inc. v. Fetzer Vineyards, N.D. Cal. (Sept. 19, 2017) (Judge William Orrick) - Winemaker Fetzer Vineyards recently escaped a trademark infringement lawsuit brought by...more

“Local” is a Claim Requiring Substantiation in False Advertising Action

by Reed Smith on

U.S. District Court in Utah decided an interesting case involving whether an advertiser can use the word “local” in Bimbo Bakeries USA, Inc. v. Leland Sycamore et al. Defendant Leland Sycamore had invented the trade secret...more

Flawed Consumer Survey Wipes Out $54 Million Verdict in Trademark Infringement Dispute

by Dorsey & Whitney LLP on

In trademark infringement cases, consumer survey evidence can be a powerful tool. It can also badly malfunction, as Black & Decker recently experienced. ...more

Court Says Flawed Likelihood-of-Confusion Survey Which Followed Neither the Ever-Ready nor Squirt Standards Was Prejudicial...

On September 11, 2017, the Northern District of Illinois granted a motion for a new trial based on the improper admission of prejudicial likelihood-of-confusion survey evidence. The Black & Decker Corporation sued Positec...more

No Free Ride for Copycat Perfume Company – Fair Use Rejected, False Advertising Found, Accounting of Profits Awarded

by Dorsey & Whitney LLP on

Well-known perfume marketer Coty Inc. had a big win in New York federal district court, obtaining injunctive relief and $6.5 million dollars in an accounting of profits from copycat perfume seller Excell Brands, LLC. In an...more

Wine And Spirits Are not Always Confusingly Similar

by Weintraub Tobin on

Brand litigation can be extreme in the consumer products space and even more so for alcoholic beverages (legal cannabis brand owners take note and start stockpiling your war chest). It’s not uncommon for litigation to arise...more

Judge Dow Orders New Trial Due to Unreliable Consumer Confusion Survey

by Orrick - IP Landscape on

Order Granting Motion for New Trial, The Black & Decker Corp., et al. v. Positec USA, Inc., et al., N.D. Ill. (September 11, 2017) (Judge Robert M. Dow, Jr.) - Trademark litigants often submit survey evidence to prove that...more

Two Recent Decisions Highlight Divergent Extraterritorial Application of Lanham Act and Copyright Act

by Orrick - IP Landscape on

The question whether and under what circumstances the Lanham Act and the Copyright Act will be applied to conduct occurring at least partially outside the United States grows increasingly important as the world economy...more

Tatcha v. Too Faced: What Shade is your Trade Dress?

by Knobbe Martens on

Newcomer to the luxury cosmetics marketplace, Tatcha LLC (“Tatcha”), recently made a splash by filing a trade dress infringement lawsuit in the Northern District of California against Too Faced Cosmetics LLC (“Too Faced”), a...more

Prohibition On Nostalgia? Potential Limits On Marketing Products Using “Kid-Friendly” Names

by Fox Rothschild LLP on

An interesting case has recently been filed in the United States District Court for the Northern District of Illinois regarding the advertisement of e-cigarette liquids in flavors that seem to be directed to children under...more

Much Ado About Shoe Designs – Favorable Rulings for Adidas on Summary Judgment in Skechers Trademark Dispute

by Dorsey & Whitney LLP on

On August 3, 2017, the shoe manufacturer Adidas scored important legal victories in its long-running trademark dispute with the shoemaker Skechers. Adidas America, Inc. et al. v. Skechers USA, Inc. (D. Or. 2017) involved...more

Sneaker Wars: Adidas Defeats Summary-Judgment Motion That Claimed Stan Smith Shoe Design Lacks Distinctiveness

by Orrick - IP Landscape on

Order Granting in Part and Denying in Part Motion for Summary Judgment, Adidas America Inc. et al. v. Skechers USA Inc., D. Or. (August 3, 2017) (Judge Marco Hernández) - The ever-increasing popularity (and...more

The Relevance of Alternative Designs 16 Years After TrafFix

by WilmerHale on

In 2001, the Supreme Court in TrafFix Devices, Inc. v. Marketing Displays, Inc. refined its test for determining whether a product design is functional—and thus ineligible for trade dress protection. 532 U.S. 23, 58...more

When Asserting Arbitration Provisions, Think Inside the Box

by McDermott Will & Emery on

The US Court of Appeals for the Federal Circuit declined to apply an arbitration provision to a dispute where the asserted claims were not within the scope of the contract containing the arbitration provision. Roof N Box,...more

Between patents and trademarks: trade dress

by DLA Piper on

One of the benefits of patent litigation is the ability to obtain fairly sizable damages awards under either a "reasonable royalty" or "lost profits" theory. However, patent litigation is complicated and costly, and early...more

Intellectual Property and Business: Part 2

by Barley Snyder on

(NOTE: This is part 2 of 4 in a series of alerts linking intellectual property and economic strategy. You can read part 1 here. Check back each week for a new installment.) Monitoring and Identifying Existing and New...more

Meow- Copycat Fur and Bows - Forever 21 Stares Down Puma

by Knobbe Martens on

As discussed in our previous blog post Puma Treads New Territory Hitting Forever 21 with Copyright Allegations after the Supreme Court’s Star Athletica Decision, Puma sued Forever 21 for design patent infringement, trade...more

Default Determination Highlights The Importance Of Alleging Every Element

by Jones Day on

A recent ITC decision, stemming from a default initial determination, underscores the importance of alleging every element in a complaint. 19 U.S.C. § 1337(g)(l) provides that the Commission, when making a determination on...more

Sweet as Candy? Sugarfina takes Competitor to Court

by Robins Kaplan LLP on

On June 15th, Sugarfina Inc. (“Sugarfina”), a gourmet candy boutique, sued one of its competitors, Sweet Pete’s LLC (“Sweet Pete’s”), accusing Sweet Pete’s of trade dress, copyright, trademark, and patent infringement, as...more

Captain Morgan Defeats Admiral Nelson in a Rum Branding Battle

by Bennett Jones LLP on

The victory in the fight between two rum competitors demonstrates that unregistered trade dress rights are alive and well in Canada, admissible survey evidence remains a useful tool for proving confusion, and a competing...more

Captain Morgan makes Admiral Nelson’s walk the plank

by Smart & Biggar on

Smart & Biggar prevails at trial on behalf of Diageo in trade dress case. On June 12, 2017, the Federal Court issued its 99-page decision in Diageo Canada Inc v Heaven Hill Distilleries Inc et al, 2017 FC 571. The Court...more

Food & Beverage Litigation Update | June 2017 #3

FDA Delays Compliance Date for Nutrition Facts Labeling - The U.S. Food and Drug Administration (FDA) has announced that it will postpone the deadline for food companies to use a revised Nutrition Facts label on packaged...more

The Top Hits: Fashion Cases with a Big Impact

by Knobbe Martens on

Over the last year, there have been some significant trademark and copyright cases in the fashion industry. Below are summaries of recent cases all brand owners should know and understand. These cases touch on important...more

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