Portland furniture designer Christopher Douglas alleges that Leslie and Leigh Keno (famous from Antiques Roadshow) and furniture manufacturer Theodore Alexander USA, Inc. have infringed the trademark of his Flipper Screen.
Category Archives: Trade Dress
YSL Is Pumped!
Judge Marrero of the SDNY district court has denied Louboutin’s preliminary injunction request against Yves St. Laurent’s use of a red sole in its monochrome red pump ladies shoe.
Christian Louboutin v Yves Saint Laurent
Marty Schwimmer summarizes the issues and makes the following points:
The court has now dismissed Louboutin’s motion. It is a long decision that makes a lot of points that are, imho, color depletion and shade confusion arguments. However at the core of the holding, the court seizes on YSL’s point about the competitive need in fashion to be able to, for example, sell monochrome shoes, and sell red monochrome shoes, and sell red dresses that go with red shoes, and holds that red soles are functional. On to the Second Circuit.
The thought occurs: maybe, Louboutin’s trademark is a red lacquered sole when used with an upper that is any color other than red. According to this decision, any manufacturer’s red shoes could use red soles. But does any manufacturer’s black shoes need red soles?
Charles Colman’s provides Judge Marrero’s “blockbuster” quote:
Because in the fashion industry color serves ornamental and aesthetic functions vital to robust competition, the Court finds that Louboutin is unlikely to be able to prove that its red outsole brand is entitled to trademark protection even if it has gained enough public recognition in the market to have acquired secondary meaning.
Professor Susan Scafidi uses Judge Marrero’s decision as an example of why fashion designers need copyright protection:
Judge Marrero, however, hung his order on the hypothetical example of Picasso attempting to prevent Monet from using the color blue in the Water Lilies series because the color had been Picasso’s hallmark during his Blue Period. Unthinkable from an art history perspective, of course. The court acknowledges that no analogy is perfect — but then goes on to claim that both painting and fashion design exist in the overlapping spheres of art and commerce, and that neither is well served by individual monopolies on color.
Setting aside the troubling conflation of use of a red sole as a trademark versus use as a design element, the separation of which is the true challenge in this case, the court’s analogy raises an essential question: Why are paintings characterized as “art” and entitled to full copyright protection while fashion receives almost none?
Who Knew? A Galette Trademark Registration
I stumbled on this product configuration trademark registration for pastries. For years I’ve been making rustic fruit galettes, a dessert made with pie dough. Instead of using a pie tin or pan, the fruit is placed on a circle of dough and then the edges are folded up and over each other (not crimped), creating some overlap that holds in the fruit. Until now I thought this was a traditional French way to prepare a fruit dessert. Au contraire.
Evidently, the folded edge is not functional and not a generic method of enclosing fruit in dough to be baked, but actually is a source indicator for Chudleigh’s, a commercial bakery in Ontario, Canada. The folded dough shape is designed to evoke apple blossoms, which in turn are meant to evoke an apple orchard. Because 
the bakery also operates an apple orchard, the pastry shape suggests Chudleigh’s is its source. So says Chudleigh’s office action response.
In that response, Chudleigh distinguished its pastry from Hostess and McDonald’s fruit pies. And then compared the pastry to traditional pies:
Finally, even if Applicant’s BLOSSOM product is not compared to snack cakes, but instead to baked goods in general, applicant is aware of no similar pie shape. Applicant’s BLOSSOM pastry has large folds arranged in a concave circle. The typical tart or piecrust is fluted by pinching the edges of the crust around the convex edge of the pan.
(Emphasis mine.)
Feast your eyes on this gallery of images for comparison. Any dessert lovers or bakers out there have an opinion on this? Is this a distinct and unique shape for a pastry and therefore capable of identifying source? Is the folded over pie edge functional because the shape is merely the result of an easy method to keep fruit enclosed? Is this shape a smaller version of a traditional galette? Where’s the acquired distinctiveness?
(Galette photo by Arnold Gatilao, CC Attribution 2.0 license)
LaCrosse and Danner go after alleged knock-off boots
In Oregon federal district court, LaCrosse Footwear, Inc. has filed a trademark infringement complaint against Pro Line Manufacturing Co. LLC. Danner, Inc. (owned by LaCrosse) has filed a similar complaint against Rocky Brands, Inc. Both complaints allege the infringement of two popular boots’ trade dress. Trade dress is the entire image or overall appearance of a product, and can include a product’s size, shape, color combinations, texture, or graphics.
LaCrosse Footwear Complaint
LaCrosse Footwear Complaint
In addition to proving that the boots have acquired distinctiveness and that consumers are likely to be confused, LaCrosse and Danner must also prove that their trade dress is non-functional. A product’s features are functional if there is a competitive need to use them, they are essential to the use or purpose of the product, or they affect the product’s cost or quality.