November–December, 2015 Vol. 105 No. 6

Registering Store Design as a Trademark in the United States and Germany: A Comparative Analysis Nicolas Hohn-Hein

Why Louboutin Matters: What Red Soles Teach Us About the Strategy of Trade Dress Protection Anne H. Hocking and Anne Desmousseaux

Trade Dress versus Design Patents: Understanding the Different Tests for Infringement Bryan K. Wheelock

Deliberate Differentiation: Strategies for Creating and Protecting Iconic Designs (How Planning Trumps Serendipity in Pursuit of The Real Thing and Other True-Life Stories of Design Protection) Joshua Cohen and Rex Donnelly

Karen Millen Fashions Ltd v. Dunnes Stores, Dunnes Stores (Limerick) Ltd: Clarifying the Assessment of Individual Character in EU Designs Richard Hing and Leighton Cassidy

Commentary: Faux Amis in Design Law Sarah Burstein

Commentary: Should Implementation of the Hague Agreement Cause United States–Based Owners of Fashion Designs to Double Down on Their Dual-System Filing Strategies Under the Lanham Act and Patent Act? Jessica Elliott Cardon

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TRADE DRESS VERSUS DESIGN PATENTS: UNDERSTANDING THE DIFFERENT TESTS

FOR INFRINGEMENT

By Bryan K. Wheelock∗

I. INTRODUCTION In the United States, intellectual property laws provide

overlapping protection for non-functional or ornamental product and packaging designs. The different types of protection—namely, trade dress protection under trademark and unfair competition law, and design patents—are designed to protect different interests. Design patents are issued to reward aesthetic innovation, pursuant to the authority of Article I, Section 8, Clause 8 of the U.S. Constitution, which is intended to foster progress in science and the arts,1 whereas trademark and unfair competition law are addressed to confusion as to the source of the products at issue, to protect the senior user’s sales, reputation, and goodwill.

While the standards for protectability and validity are very different, both trade dress and design patents can, and often do, protect the same subject matter. Under United States law, “trade dress” refers to the visual aspects of a product or its package, which, if they are or have become distinctive and are perceived as an indicator of source, are protected by trademark and unfair competition law to avoid the likelihood of consumer confusion. A design patent, on the other hand, protects the aesthetic appearance of products and packaging that meet the novelty and non-obviousness requirements of the patent laws.2

A trademark practitioner, well versed in likelihood-of-confusion analysis, would likely be confident in his or her ability to apply the confusion-based ordinary observer test. The test for design patent infringement was initially defined by the Supreme Court in Gorham Mfg. Co. v. White.3 Per Gorham, a product infringes a design patent if “in the eye of an ordinary observer, giving such attention as a purchaser usually gives, . . . the resemblance is such as to deceive such an observer, inducing him ∗ Principal, Harness Dickey, St. Louis, Missouri, Associate Member, International Trademark Association. 1. “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const., Art. I, § 8, Clause 8. 2. Pursuant to 35 U.S.C. § 171(b), a design must be novel (35 U.S.C. § 102) and non-obviousness (35 U.S.C. § 103) to be patentable. 3. 81 U.S. 511 (1871).

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to purchase one supposing it to be the other.”4 Although this formulation would sound familiar to a trademark practitioner, the test for design patent infringement differs in several critical aspects from a conventional multifactor likelihood of confusion analysis under trademark and unfair competition law, sometimes leading to different results on the trade dress and design patent claims, even when the same products are involved.

A. The Basic Tests for Infringement The focus of the trade dress likelihood-of-confusion analysis is

to determine whether two product or package designs are so similar that consumers are likely to be confused as to the source or origin of the junior user’s products, thus allowing the junior user to coopt the senior user’s goodwill. This inquiry is intended to address real world behavior in the marketplace and may involve factors ancillary to the trade dress itself, such as price point, channels of trade, etc., arising from the way that the public actually interacts with the goods at issue.5

The standard for determining design patent infringement is whether the defendant’s design is a colorable imitation of the patented design. This inquiry considers the perception of the “hypothetical ordinary observer,”6 irrespective of potentially distinguishing marketplace realities.7 The question, thus, is not confusion as to source, but whether the junior user’s design is substantially the same as the design shown in the patent.

Therefore, in L.A. Gear Inc. v. Thom McAn Shoe Co.,8 the Federal Circuit, applying the different tests for trade dress infringement and design patent infringement, reached the conclusion that Thom McAn infringed L.A. Gear’s design patent, but did not infringe the trade dress of the patented shoe. As to the trade dress infringement issue, the Federal Circuit, applying Second Circuit law, concluded that the “conspicuous and permanent placement” of the parties’ respective trademarks, and the “sophistication of the purchasers” outweighed the similarity of

4. Id., at 528. 5. See Louis Vuitton Malletier v. Burlington Coat Factory Warehouse Corp., 426 F.3d 532, 76 U.S.P.Q.2d 1852 (2d Cir. 2005) (“courts must evaluate the likely effect on consumers of the marks’ similar and dissimilar features with a focus on market conditions.”). 6. See Egyptian Goddess, 543 F.3d 665, 678 (Fed. Cir. 208) (en banc). 7. See, e.g., Braun Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 24 U.S.P.Q.2d 1121 (Fed. Cir. 1992). (“Design patent infringement does not concern itself with the broad issue of consumer behavior in the marketplace.”); Unette Corp. v. Unit Pack Co., 785 F.2d 1026, 1029 (Fed. Cir. 1986) (likelihood of purchasers’ confusion as to source of goods is not necessary factor for determining design patent infringement). 8. L.A. Gear Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 25 U.S.P.Q.2d 1913 (Fed. Cir. 1993).

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the shoe designs and avoided confusion as to source.9 With respect to the design patent claim, however, the Federal Circuit, applying its own law, affirmed the district court’s finding of design patent infringement as the overall appearance of defendant’s shoes created the “same distinctive overall look” as the patented design, and the design patent infringement analysis does not “allow of [sic] avoidance of infringement by labelling.”10

II. DESIGN PATENT INFRINGEMENT IS A MORE HYPOTHETICAL INQUIRY

Trade dress infringement requires proof of a likelihood of confusion. Such a showing can be made even if there has been no actual confusion, and thus trade dress infringement is somewhat hypothetical. Nevertheless, trademark and unfair competition law is concerned with determining consumers’ behavior in the actual marketplace. By contrast, in a design patent case, the finder of fact is not concerned with comparison of goods in a real or even a hypothetical marketplace; rather, design patent infringement turns on whether the design of the defendant’s product is substantially similar to the patented design, so as to deceive an observer, inducing him to purchase one supposing it to be the other. This is a more hypothetical inquiry because it does not involve the comparison between two real-world products,11 but between the plaintiff’s patent drawings and the defendant’s product, and is made more hypothetical by a patent owner’s ability to remove various elements of the product design by showing only selected portions of the product in the patent drawings. Apple used this technique to great effect to eliminate selected aspects of the appearance of its iPhone from its design patents, contributing to the finding that Samsung infringed Apple’s patents.12

In a case where the district court found patent infringement because “the two designs are substantially the same,”13 the Federal Circuit stated that “[l]ikelihood of confusion as to the source of the goods is not a necessary or appropriate factor for determining infringement of a design patent.”14 The court stated:

9. 988 F.2d at 1134, 25 U.S.P.Q.2d at 1926. 10. 988 F.2d at 1125. 11. Sun Hill Indus. v. Easter Unlimited, 48 F.3d 1193, 1196, 33 U.S.P.Q.2d 1925, 1927 (Fed. Cir. 1995), reh’g en banc denied, 1995 U.S. App. LEXIS 11643 (Fed. Cir. 1995); Unette, 785 F.2d at 1029 (“The holder of a valid design patent need not have progressed to the manufacture and distribution of a ‘purchasable’ product for its design patent to be infringed by another’s product.”). 12. See Apple Inc. v. Samsung Electronics Co., Ltd., 785 F.3d 983, 114 U.S.P.Q.2d 1953 (Fed. Cir. 2015). 13. Unette, 785 F.2d at 1028. 14. Id. at 1029.

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Concluding that a purchaser is unlikely to be confused by any similarity in a competitor’s product only serves to blur the otherwise clear line that exists between the test for infringement of a design patent and the ‘likelihood of confusion’ test for infringement of a trademark.15

III. MULTIFACTOR ANALYSIS As every U.S. trademark practitioner is aware, each judicial

circuit has developed its own multifactor test for determining likelihood of confusion, which applies both to trademarks and to trade dress.16 While these tests vary somewhat from circuit to circuit, as the Supreme Court recently observed in B&B Hardware, Inc. v. Hargis Industries,17 “the factors are not fundamentally different.”18 The factors typically include questions relating to: (a) similarity of the marks; (b) similarity of the goods/services; (c) the strength of the plaintiff’s mark; (d) the type and sophistication of customers, as well as the respective channels of trade of the products at issue; (e) the existence (and sometimes the absence) of actual confusion; and, (f) the intent of the alleged infringer. The role of each of these factors in determining trade dress infringement is analyzed below in further detail, together with the degree of applicability or inapplicability of each such factor in the context of a design patent case.

A. The Similarity of the Trade Dress versus the Similarity of the Designs

The similarity of the trade dress is just one, albeit the

primary, factor in the likelihood of confusion analysis, while 15. Id. 16. First Circuit: I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 49 U.S.P.Q.2d 1225 (1st Cir. 1998); Second Circuit: Nora Beverages Inc. v. Perrier Grp. of Am., Inc., 269 F.3d 114, 60 U.S.P.Q.2d 1038 (2d Cir. 2001) (applying factors from Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961)); Third Circuit: McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 85 U.S.P.Q.2d 1545 (3d Cir. 2007); Interpace Corp. v. Lapp, Inc., 721 F.2d 460 (3d Cir. 1983); Fourth Circuit: Shakespeare Co. v. Silstar Corp. of Am., 110 F.3d 234, 42 U.S.P.Q.2d 1266 (4th Cir. 1997); Fifth Circuit: Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 95 U.S.P.Q.2d 1333 (5th Cir. 2010); Sixth Circuit: Innovation Ventures, LLC v. N2G Distrib., Inc., 763 F.3d 524, 112 U.S.P.Q.2d 1423 (6th Cir. 2014); Seventh Circuit: Top Tobacco, L.P. v. North Atl. Operating Co., 509 F.3d 380, 85 U.S.P.Q.2d 1251 (7th Cir. 2007); Eighth Circuit: Hubbard Feeds, Inc. v. Animal Feed Supplement, Inc., 182 F.3d 598, 51 U.S.P.Q.2d 1373 (8th Cir. 1999); Ninth Circuit: Kendall-Jackson Winery Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042, 47 U.S.P.Q.2d 1332 (9th Cir. 1998); Tenth Circuit: Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 84 U.S.P.Q.2d 1214 (10th Cir. 2007); Eleventh Circuit: Bauer Lamp Co. v. Shaffer, 941 F.2d 1165, 20 U.S.P.Q.2d 1128 (11th Cir. 1991). 17. 135 S. Ct. 1293 (2015). 18. Id. at 1307.

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similarity of the accused design to the patented design is the sole and determinative factor in a design patent case.

Trade dress analysis focuses on the appearance of the product as a whole including the features that are similar and dissimilar. All aspects of the parties’ designs are considered, including the presence or absence of the parties’ trademarks. In contrast, in a patent infringement case, the trier of fact considers only those portions of the design that are defined by the patent.19 The test for infringement is not whether the accused product is substantially similar to the patentee’s commercial embodiment of the claimed design,”20 which could include unclaimed and therefore irrelevant features as grounds for similarity or difference. In fact, the patentee need not be using the patent design at all. However, a comparison between commercial products is not necessarily improper where the patent owner’s commercial product is substantially the same as the patented design;21 such comparison “may facilitate” application of the Gorham infringement criterion.22

As stated, the patent laws allow an inventor to select only portions of an object to protect,23 so as to protect only particular original design elements. The inventor’s delineation of the design in the application may serve to exclude material covered by prior art or simply to highlight the most distinctive aspects of the design. The claimed design is illustrated in solid lines, while unclaimed surrounding environment is shown in broken lines.24 For example, consider U.S. Patent No. D717876,25 which covers only a “bump” on the front of a game controller, and not the other parts of the controller.

19. L.A. Gear Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1126 (Fed. Cir. 1993) (“Design patent infringement relates solely to the patented design, and does not require proof of unfair competition in the marketplace.”). 20. Sun Hill Indus., Inc. v. Easter Unlimited, Inc., 48 F.3d 1193, 1196 (Fed. Cir. 1995) (“The test for infringement is not whether the accused product is substantially similar to the patentee’s commercial embodiment of the claimed design.”) (citing Loctite Corp. v. Ultraseal Ltd., 781 F.2d 861, 870, 228 U.S.P.Q. 90, 95 (Fed. Cir. 1985)). 21. Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1189 (Fed. Cir. 1988). 22. L.A. Gear, 988 F.2d at 1126. 23. In re Zahn, 617 F.2d 261, 267 (C.C.P.A. 1980) (“a design for an article of manufacture may be embodied in less than all of an article of manufacture.”). 24. See Manual of Patent Examining Procedure § 1503.02. 25. U.S. Patent No. D717, 876 S (issued Nov. 18, 2014).

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U.S. Patent No. D717876 (Fig. 7)

The ordinary observer test “requires a side-by-side view of the drawings of the [design patent claim] and the accused products.”26 However, the accused product and the design do not have to be identical.27 A showing of minor differences between a patented design and an accused article’s design does not prevent a finding of infringement.28

While the patent owner can exclude portions of the product from the design patent by showing those portions in broken lines, the patent owner generally must show that all the features shown in solid lines are present in the accused product.29 The focus is on the overall ornamental appearance of the design as defined by the patent, not selected ornamental features.30 “Thus, one cannot establish design patent infringement by showing similarity of only one part of a patented design if the designs as a whole are substantially dissimilar.”31

For purposes of design patent infringement, the accused product is compared only with the portions of the design shown in solid lines,32 while the similarity inquiry for trade dress would 26. Crocs, Inc. v. Int’l Trade Comm’n, 598 F.3d 1294, 1304 (Fed. Cir. 2010); see also Richardson v. Stanley Works, Inc., 610 F. Supp. 2d 1046 (D. Ariz. 2009). 27. See, e.g., Crocs, 598 F.3d at 1303; Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370, 1376 (Fed. Cir. 2002) (“In assessing infringement, the patented and accused designs do not have to be identical in order for design patent infringement to be found . . . . What is controlling is the appearance of the design as a whole in comparison to the accused product.”); Braun, Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 820 (Fed. Cir. 1992) (“[P]atent infringement can be found for a design that is not identical to the patented design.”) (citing Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1190 (Fed. Cir. 1988)). 28. See, e.g., Payless Shoesource, Inc. v. Reebok Int’l, Ltd., 998 F.2d 985, 27 U.S.P.Q.2d 1516 (Fed. Cir. 1993); Litton Sys., Inc. v. Whirlpool Corp., 728 F.2d 1423, 1444, 221 U.S.P.Q. 97, 110 (Fed. Cir. 1984). 29. See Elmer v. ICC Fabricating, Inc., 67 F.3d 1571, 1577 (Fed. Cir. 1995) (noting patent owner effectively limited scope of patent claim by including vertical ribs and upper protrusion in it.). 30. See id., at 1578. See also KeyStone Retaining Wall Sys., Inc. v. Westrock, Inc., 997 F.2d 1444, 1450 (Fed. Cir. 1993); Braun, 975 F.2d 815, 820 (Fed. Cir. 1992); L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1125 (Fed. Cir. 1993). 31. KeyStone, 997 F.2d at 1450. 32. Nordock, Inc. v. Sys. Inc., 116 U.S.P.Q.2d 1650, 116 U.S.P.Q.2d 1650 (Fed. Cir. 2015) (noting that the district court explained that “the broken lines in the figures do not form any part of the claim.”).

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necessarily include the entire trade dress of the two products, including their trademarks. By contrast, while a trade dress plaintiff may call attention to particular similarities between its product and those of the defendant, differences in the overall appearance of the products at issue may impact the assessment of similarity of trade dress, as consumer confusion is measured by the overall impact of the products at issue.33

B. Similarity of the Goods/Services The likelihood-of-confusion analysis for trade dress extends to

related products that the consumer would expect come from the same source or one affiliated with or sponsored by plaintiff. In contrast, a design patent claims, and thus protects, a design used as part of a particular object, and thus typically cannot be infringed by a different kind of product, notwithstanding a similar appearance.34

C. Strength of the Mark The likelihood of confusion analysis considers the strength

(distinctiveness) or weakness of the plaintiff’s trade dress, that is, the power of the trade dress to serve as an identifier of source. Strength of the trade dress is demonstrated by extensive advertising, length of time in business, public recognition, and uniqueness.35 Trade dress relating to a product configuration cannot be considered inherently distinctive, as a matter of law, and is only protectable upon a showing of secondary meaning.36 Secondary meaning is a term of art in trademark law, which denotes that there is an association formed in the minds of the consumers between the mark and the source or origin of the product.37 Secondary meaning must be shown to have existed prior to the date on which the accused infringer commenced using a confusingly similar trade dress.38 Two product designs may be 33. See McCarthy on Trademarks and Unfair Competition, § 8.1, n.8 (2013), noting that while the plaintiff defines its trade dress, the excluded elements “cannot be ignored.” See also L.A. Gear Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 25 U.S.P.Q.2d 1913, 1921 (Fed. Cir. 1993) (“Trade dress is thus viewed as the overall combination and arrangement of design elements into the total image by which the product is perceived by the consuming public.”). 34. 35 U.S.C. § 171 provides of the patenting of “any new, original and ornamental design for an article of manufacture,” and not to designs in the abstract. 35. Gucci Timepieces Am. Inc. v. Yidah Watch Co., 47 U.S.P.Q.2d 1938, 1943 (C.D. Cal. 1998). 36. See, e.g., Wal-Mart Stores v. Samara Bros., 529 U.S. 205, 54 U.S.P.Q.2d 1065 (2000); Cicena, Ltd. v. Columbia Telecomms. Grp., 900 F.2d 1546, 14 U.S.P.Q.2d 1401 (Fed. Cir. 1990). 37. See Tone Bros. v. Sysco Corp., 28 F.3d 1192, 31 U.S.P.Q.2d 1321 (Fed. Cir. 1994). 38. See id.

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sufficiently similar to result in a finding of design patent infringement, yet not constitute trade dress infringement because the senior user cannot demonstrate secondary meaning.39 Other aspects of trade dress—for example, product packaging—may be found to be inherently distinctive, and hence protectable without a showing of acquired distinctiveness.40 The more distinctive the trade dress, and the stronger the secondary meaning, the stronger the trade dress, and thus the more likely that a similar design will be found to be confusingly similar to it.41 Thus, a trade dress owner may want to introduce evidence of its advertising, expenditures, sales figures, consumer surveys, media coverage, copying by others, and length and exclusivity of use,42 all of which are intended to prove that consumers associate the trade dress with a unique source, and none of which would be relevant to design patent infringement, which is concerned only with whether the junior user’s design is substantially similar to the design covered by the patent, regardless of whether or not consumers associate the design with the patentee.

The strength of trade dress also depends upon the number and nature of third-party uses of similar trade dress.43 Under the “crowded field doctrine,”44 third-party uses generally require the court to extend a trade dress less protection than it would in the absence of such uses.45 That said, third-party use of the elements of the trade dress that do not convey the same total image does not result in the loss of protection.46

In the design patent context, the distinctiveness of the patent design likewise impacts the determination of infringement, but that distinctiveness is determined by comparison of the patented design with the prior art. Where the patented design is similar to prior published designs, whether previously patented or otherwise (the “prior art”), greater similarity between the patent and accused 39. See Braun, 975 F.2d at 825-26. 40. See Wal-Mart, 529 U.S. at 210-12. 41. See Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 821, 208 U.S.P.Q. 713, 717 (9th Cir. 1980) (“The stronger the evidence of secondary meaning hit, the stronger the mark, and the more likely is confusion.”). 42. See, e.g., George Basch Co. v. Blue Coral, Inc., 968 F.2d 1532, 1536 (2d Cir. 1992). 43. AmBRIT, Inc. V. Kraft Inc., 812 F.2d 1531, 1535, 1 U.S.P.Q.2d 1161, 1167 (11th Cir. 1986); KIND LLC v. Clif Bar & Co., 111 U.S.P.Q.2d 1795, 1801 (S.D.N.Y. 2014); Best Cellars Inc. v. Grape Finds at Dupont Inc., 90 F. Supp. 2d 431, 454, 54 U.S.P.Q.2d 1594, 1612 (S.D.N.Y. 2000) (“[S]trength may be diminished by the existence of similar dresses used in connection with similar products”); Florida Breckenridge Inc. v. Solvay Pharmaceuticals Inc., 43 U.S.P.Q.2d 1878, 1883 (S.D. Fla. 1997); Robarb Inc. v. Pool Builders Supply of the Carolinas Inc., 21 U.S.P.Q.2d 1743, 1748 (N.D. Ga. 1991);. 44. See, e.g., Moose Creek, Inc. v. Abercrombie & Fitch Co., 331 F. Supp. 2d 1214 (C.D. Cal. 2004); JL Beverage Co., LLC v. Beam, Inc., 899 F. Supp. 2d 991 (D. Nev. 2012). 45. 812 F.2d at 1536, 1 U.S.P.Q.2d at 1168. 46. Id.

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designs is required to find infringement. If the accused design is no more similar to the patented design than to the prior art, infringement will not be found. As the Federal Circuit explained in Egyptian Goddess, Inc. v. Swisa, Inc.:47

when the claimed and accused designs are not plainly dissimilar, resolution of the question whether the ordinary observer would consider the two designs to be substantially the same will benefit from a comparison of the claimed and accused designs with the prior art, as in many of the cases discussed above and in the case at bar. Where there are many examples of similar prior art designs . . . differences between the claimed and accused designs that might not be noticeable in the abstract can become significant to the hypothetical ordinary observer who is conversant with the prior art.48

While the distinctiveness, and thus the protectability, of a trade dress depends upon what other products are currently in the market place, the validity, and thus the protectability, of a patented design depends upon what products were ever in the marketplace or were subject to patent protection.

D. Factors Relating to Behavior and Perception of Customers

Likelihood of confusion of trade dress takes into account whose potential confusion is at issue—that is, what is the “relevant universe” of consumers to consider confused. This analysis necessarily considers who the products are marketed to, the sophistication of the customers, and the degree of care these customers would exercise, which may be affected by factors such as the channels of trade and price point. As a general rule, the courts consider whether a likelihood exists that “an appreciable number of ordinarily prudent purchasers” of the products in question will be misled or confused.49

The relevant universe in a trade dress case may be not always the consuming public generally or potential customers for the specific goods at issue. In Continental Plastic Containers Inc. v. Owens-Brockway Plastic Products Inc.,50 the Federal Circuit Court

47. 543 F.3d 665 (Fed. Cir. 2008). 48. Id. at 678. 49. Mushroom Makers, Inc. v. R. G. Barry Corp., 580 F.2d 44, 47 (2d Cir. 1978), cert. denied, 439 U.S. 1116 (1979). See also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 127 (quoting Mushroom Makers); Centaur Commc’ns, Ltd. v. ASM Commc’ns, 830 F.2d 1217, 1225 (quoting Mushroom Makers); Dorr-Oliver, Inc. v. Fluid-Quip, Inc., 94 F.3d 376, 382, 39 U.S.P.Q.2d 1990, 1995 (7th Cir. 1996) (“The proper examination is not whether some people viewing [the products] might be confused, but rather whether consumers in the market for [the products] are likely to be confused.”) (emphasis in original). 50. 141 F.3d 1073, 46 U.S.P.Q.2d 1277 (Fed. Cir. 1998).

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of Appeals agreed that plaintiff’s trade dress for plastic bottles was not infringed because plaintiff sold these bottles empty, without lids or labels, to wholesale purchasers, who are very unlikely to be confused over the source of the bottles. These purchasers may be characterized as sophisticated buyers because sales to these parties are likely to be the culmination of long-term negotiations, direct communication between the parties, and ongoing contact. The court rejected the argument that the likelihood of confusion analysis should include consumers buying juice in the bottles, because confusion as to the source of the juice was irrelevant to the determination as to confusion as to the source of the bottles. A trade dress infringement action could instead be based on a likelihood of confusion among the general public, as opposed to typical purchasers, if plaintiff can establish that such “public confusion will adversely affect the plaintiff’s ability to control his reputation among laborers, lenders, investors, or other group [sic] with whom the plaintiff interacts.”51

The more sophisticated the purchaser, the greater the similarity required to find a likelihood of confusion.52 This sophistication can be determined from the nature of the product, and its price.53 In design patent cases, by contrast, there is no need, theoretically, to determine the relevant consumer universe, as the question of infringement is determined from the perspective of an “ordinary observer.” The Supreme Court explained that the ordinary observer is not an expert”54:

Experts . . . are not the persons to be deceived. Much less than that which would be substantial identity in their eyes would be undistinguishable in the eyes of men generally, of observers of ordinary acuteness, bringing to the examination of the article upon which the design has been placed that degree of observation which men of ordinary intelligence give.55

51. Perini, 915 F.2d at 128 (involving trade name). See also Commc’ns Satellite Corp. v. Comcet, Inc., 429 F.2d 1245, 1251 (4th Cir. 1970) (likelihood of confusion involving trade name among investors), cert. denied, 400 U.S. 942 (1970); Ferrari S.P.A. Esercizio Fabriche Automobili E Corse v. Roberts, 944 F.2d 1235, 1244-45 (6th Cir. 1991) (involving automobile designs); Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir. 1979) (involving cheerleader uniforms). 52. Bristol-Myers Squibb Co. v. McNeil-P.P.C. Inc., 973 F.2d 1033, 24 U.S.P.Q.2d 1161 (2d Cir. 1992) (“Generally, the more sophisticated and careful the average consumer of a product is, the less likely it is that similarities in trade dress or trademarks will result in confusion concerning the source or sponsorship of the product.”). 53. Rosetta Stone Ltd. v. Google Inc., 676 F.3d 144, 102 U.S.P.Q.2d 1473 (4th Cir. 2012) (“a court may “reach a conclusion about consumer sophistication based solely on the nature of the product or its price.”). 54. Gorham Co. v. White, 81 U.S. 511, 528 (1871). 55. Id.

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However, in practice, courts sometimes do define the “ordinary observer”56 in the context of the expected purchaser. Focusing on those who buy and use, the Federal Circuit has found that the ordinary observer can be someone with expertise, affirming that the identity of the ordinary observer in a design patent case involving trigger sprayer shroud designs was “not the retail consumer of an assembled product, but the purchaser of trigger sprayer mechanisms for assembly and incorporation into the product that is sold to retail consumers.”57

In trade dress cases, available third-party designs affect the strength, and thus scope, of trade dress protection.58 In Egyptian Goddess, Inc. v. Swisa, Inc.,59 the Federal Circuit imbued the “ordinary observer” with knowledge of the prior art. In both trade dress and design patent inquiries, some familiarity with the prior designs is necessary, although in the design patent context, all prior designs that qualify as prior art are relevant, while in the trade dress context, only the designs currently in the relevant marketplace (and therefore affect the strength and distinctiveness of the claimed trade dress) are considered.60 In determining infringement of a design patent, it is the accused product that defines the ordinary observer (e.g., a truck tire), not the subject of the patented design (e.g., a tire).61

In trade dress infringement, differences between the classes of customers to whom the plaintiff’s and defendant’s products are directed can weigh against a finding of likelihood of confusion. In other words, sophisticated consumers, as a result of the nature or price point of the goods, are presumed to take more care in making purchasing decisions and hence to be less easily confused by

56. The “ordinary observer” used to determine design patent infringement will usually be different from the “ordinary designer” used to determine the obviousness, and thus patentability, of a design. See High Point Design LLC v. Buyers Direct, Inc., 730 F.3d 1301, 108 U.S.P.Q.2d 1183 (Fed. Cir. 2013). 57. Arminak & Assocs. v. Saint-Gobain Calmar, Inc., 501 F.3d 1314, 1323 (Fed. Cir. 2007). 58. See, e.g., Kreation Juicery, Inc. v. Shekarchi, 2014 BL 372343 (C.D. Cal. 2014). (“The fact that these design elements are popular trends at the moment undermines the exclusivity of [Plaintiff’s] trade dress.”) 59. 543 F.3d 665, 671 (Fed. Cir. 2008) (en banc). 60. See In re Water Gremlin Co., 635 F.2d 841, 844 (C.C.P.A. 1980)(warning that “one who chooses a commonplace design for his package” must rely on other means for identification); see In re Lucky Co., 209 U.S.P.Q. 422, 423 (T.T.A.B. 1980) (stating that “it is the common practice among the manufacturers of athletic shoes to place various [s]tripe and bar designs on the sides of their respective shoes” and noting that this practice leaves such manufacturers “with marks that are extremely weak and certainly entitled to only a very narrow and limited scope of protection”). 61. Goodyear Tire & Rubber Co. v. Hercules Tire & Rubber Co., 162 F.3d 1113, 1117 (Fed. Cir. 1998) (“[T]he focus is on the actual product that is presented for purchase, and the ordinary purchaser of that product.”). See also Esercizio, 944 F.2d at 1244-45; Dallas Cowboys, 604 F.2d at 205.

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similar designs or markings. However, because design patent infringement is premised exclusively on a comparison between the accused product and the design described in the patent, and cannot be avoided by a showing that the defendant’s purchasers may not even encounter plaintiff’s design product, differences in channels of trade are irrelevant.62

E. Actual Confusion In a trade dress infringement case, evidence of actual

confusion between two products is strong evidence that there is a likelihood of confusion; similarly, the absence of actual confusion, despite an adequate opportunity for such confusion to occur, may be evidence that confusion is not likely.63

The presence or absence of actual confusion is not usually a factor in design patent infringement because the comparison is between an actual product (defendant’s) and the protected design as reflected in the patent, rather than any product actually manufactured or sold by the plaintiff. In fact, it is possible to infringe a design patent even if the patent owner has no commercial product embodying the claimed design.64 Nor can a defendant avoid a finding of design patent infringement by use of clearly distinguishing source identifiers.

Comparing the accused product with the patent owner’s product can result in error,65 with the accused product being distinguished from the patented design on the basis of features not claimed in the patent.66 However, actual confusion in the market can be evidence of design patent infringement,67 that is, evidence 62. See, e.g., Unette Corp. v. Unit Pack Co., 785 F.2d 1026, 1028, 228 U.S.P.Q. 933, 934 (Fed. Cir. 1986); Avia Grp. Int’l, Inc. v. L.A. Gear Calif., Inc., 853 F.2d 1557, 1565 (Fed. Cir. 1988) (“The products of the parties need not be directly competitive; indeed, an infringer is liable even when the patent owner puts out no product. A fortiori, infringement is not avoided by selling to a different class of purchasers than the patentee.”). 63. Speedplay Inc. v. Bebop Inc., 211 F.3d 1245, 53 U.S.P.Q.2d 1984, 1993-4 (Fed. Cir. 2000); Versa Prods. Co. Inc. v. Bifold Co. (Manufacturing) Ltd., 50 F.3d 189, 33 U.S.P.Q.2d 1801, 1806 (3d Cir. 1995). 64. See, e.g., Avia Grp., 853 F.2d at 1565; Unette, 785 F.2d at 1029 (“The holder of a valid design patent need not have progressed to the manufacture and distribution of a ‘purchasable’ product for its design patent to be infringed by another’s product.”). 65. Hupp v. Siroflex of Am., Inc., 122 F.3d 1456, 1465 (Fed. Cir. 1997) (“Although there was some evidence of consumer confusion, a reasonable jury could have found that the . . . design was not substantially the same and did not have substantially the same effect, and did not infringe the . . . patent.”); see also Sun Hill Indus. Inc. v. Easter Unlimited Inc., 33 U.S.P.Q.2d 1925 (Fed. Cir. 1995) (reversing a finding of infringement based upon a comparison with plaintiff’s commercial product, rather than with plaintiff’s patent.) 66. See Payless Shoesource, Inc. v. Reebok Int’l Ltd., 998 F.2d 985, 990, 27 U.S.P.Q.2d 1516, 1521 (Fed. Cir. 1993) (“Proper application of the Gorham test requires that an accused design be compared to the claimed design, not to a commercial embodiment.”). 67. See OddzOn Products Inc. v. Just Toys Inc., 122 F.3d 1396, 1406-07, 43 U.S.P.Q.2d 1641 (Fed. Cir. 1997) (Holding exclusion of the “actual confusion” evidence was improper).

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that the ordinary observer will perceive the designs as substantially similar, at least if the patent owner can prove that its own product is substantially the same as the patented design.68 Therefore, evidence of actual confusion can be relevant,69 although it is not necessarily dispositive.

Consumer behavior in the marketplace is a highly relevant factor in determining trade dress infringement. Since surveys and other empirical studies are ordinarily probative evidence of consumer behavior in the marketplace, such evidence has significance in determining trade dress infringement.70 A plaintiff’s failure to offer survey evidence may even be used to support a finding of no infringement. A different quantum of proof applies to design patent infringement, which does not concern itself with the broad issue of consumer behavior in the marketplace, and thus there is ordinarily no compelling need for empirical evidence.71 This is not to say that consumer surveys cannot be probative in design patent cases, but they would have to establish an overall similarity, and a link between the similarity and the ornamental features72—a standard that is rarely, if ever, met. Given the expense of surveys, a design patent claim, where survey evidence is not typical, could be more attractive to a plaintiff with limited litigation resources.

F. Branding and Disclaimers The prominent display of a trademark73 or the presence of a

disclaimer74 on the accused infringer’s product can ameliorate a 68. Cf. L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 1125-26 (Fed. Cir. 1993) (“When the patented design and the design of the article sold by the patentee are substantially the same, it is not error to compare the patentee’s and the accused articles directly.”) (citing Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1189 (Fed. Cir. 1988)). See also Braun, Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 820 n.8 (Fed. Cir. 1992). 69. See OddzOn Prods., Inc. v. Just Toys, Inc., 122 F.3d 1396, 1406-07 (Fed. Cir. 1997) (“[E]xclusion of the ‘actual confusion’ evidence on relevance grounds was an abuse of discretion. Given the low threshold for relevancy, it is clear that the evidence was relevant. It has a ‘tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ Fed. R. Evid. 401.”). 70. See Braun Inc. v. Dynamics Corp. of Am., 975 F.2d 815, 24 U.S.P.Q.2d 1121 (Fed. Cir. 1992). 71. Id., at 821-29. 72. Puritan-Bennett Corp. v. Penox Techs. Inc., 2004 WL 866618 (S.D. Ind. 2004) (denying Penox’s motion that Puritan-Bennett’s design patent survey evidence was irrelevant), John O. Butler Co. v. Block Drug Co., Inc., 620 F. Supp. 771, 777 (N.D. Ill. 1985) (the court giving “significant weight” to Butler’s survey evidence); see also OddzOn, 122 F.3d at 1406 (rejecting survey evidence because “[t]he survey fails to establish a link between the similarity reported by respondents and the patented ornamental aspects of the design.”). 73. See Nora Beverages Inc. v. Perrier Grp. of Am., Inc., 269 F.3d 114, 122 (2d Cir. 2001) (“Labels can be integral, if not dispositive, factors in determining overall similarity of trade dress.”). Of course, where the label is not sufficiently prominent, it will not be given

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likelihood of confusion. However, the presence of a trademark on a product is not relevant to design patent infringement,75 unless perhaps the trademark visually changes a defendant’s product design to such an extent that it is no longer similar to the patented design. Similarly, the prominent display of a trademark on the trade dress owner’s product (or its packaging) may eliminate the likelihood of confusion. However, branding and other features on the patent owner’s commercial product that are not part of the patented design are irrelevant as a matter of law when comparing the accused product with the patented design.76

G. Intent An accused infringer’s intent to simulate the plaintiff’s

protectable trade dress may justify an inference that the intended efforts were successful.77 Intent is generally not an issue in design patent infringement, although it is relevant in determining willfulness for purposes of increased damages and attorneys’ fees.78

effect. See L.A. Gear, Inc. v. Thom McAn Shoe Co., 988 F.2d 1117, 25 U.S.P.Q.2d 1913 (Fed. Cir. 1993). 74. See Pebble Beach Co. v. Tour 18 I Ltd., 155 F.3d 526, 552 (5th Cir. 1998) (noting “conspicuous disclaimers that disclaim affiliation may reduce or eliminate confusion.”); but see Conopco, Inc. v. May Dep’t Stores Co., 46 F.3d 1556, 1572 (Fed. Cir. 1994) (Mayer, J., dissenting) (noting that according to experts on consumer psychology, “consumers rarely, if ever, pay attention to disclaimers . . . [and this is] especially true if it is obscurely placed.”). 75. L.A. Gear, 988 F.2d at 1126 (noting design patent infringement does not “allow of avoidance of infringement by labelling.”). 76. See, e.g., Payless Shoesource, Inc. v. Reebok Int’l, Ltd., 998 F.2d 985, 27 U.S.P.Q.2d 1516 (Fed. Cir. 1993); Secalt S.A. v. Wuxi Shenxi Constr. Mach. Co., 668 F.3d 677, 685, 101 U.S.P.Q.2d 1553, 1557 n.3 (9th Cir. 2012). 77. See Babbit Elecs., Inc. v. Dynascan Corp., 38 F.3d 1161, 1179 (11th Cir. 1994) (“Intent to copy in itself creates a rebuttable presumption of likelihood of confusion.”) (citing Bauer Lamp Co. v. Shaffer, 941 F.2d 1165, 1172 (11th Cir. 1991) (citing Ambrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1542 (11th Cir. 1986))). See also First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1385 (9th Cir. 1987) (“Intent of a defendant in adopting his trade dress is a critical factor, since if the trade dress were adopted with the intent of depriving benefit from the reputation of the plaintiff, that fact alone may be sufficient to justify the inference that there is confusing similarity.”); L.A. Gear, 988 F.2d at 1132; Am. Home Prods. v. Barr Labs., Inc., 834 F.2d 368, 371 (3d Cir. 1987); but see Versa Prods. Co. v. Bifold Co., 50 F.3d 189, 205-08 (indicating intent is not relevant when trade dress relates to product). 78. Robert Bosch LLC v. Pylon Manufacturing Corp., 719 F.3d 1305, 107 U.S.P.Q.2d 1113 (Fed. Cir. 2013) (Finding that willful infringement “is about the objective reasonableness of the infringer’s actions in light of the risks of infringing a valid patent, and that infringer’s intent vis-à-vis the patentee’s rights.”

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H. Summary of Likelihood of Confusion Factors The following table summarizes the applicability of the most

common likelihood of confusion factors to both trade dress and design patent infringement:

Factor Trade Dress Design Patent Similarity of Designs

Similarity is determined from perspective of an ordinary purchaser considering the products as a whole.

Similarity is determined from the perspective of the ordinary observer, based on a side-by-side comparison of the patent and the accused products.

Similarity of Goods

Generally, the goods must be the same or similar enough that ordinary purchasers would find the designs come from the same source.

The accused product must be the same as the patented product.

Strength of the Design

Design must be inherently distinctive or have acquired distinctiveness (secondary meaning).

Design must be novel and not obvious from any prior design.

Customers The overlap in customers, and their sophistication, knowledge, and degree of care impact determination.

The knowledge of the ordinary observer impacts the determination.

Actual Confusion

Actual confusion is highly probative of likelihood of confusion.

Comparison with the patent owner’s product is relevant only if that product is similar to the patent.

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Factor Trade Dress Design Patent Branding and Disclaimers

Branding and disclaimers on the products can reduce likelihood of confusion.

Branding and disclaimers on the products have no effect on the determination of similarity.

Accused’s Intent

The accused infringer’s intention to copy or to cause confusion usually justifies an inference that there is likelihood of confusion.

The accused infringer’s intent is generally not relevant to determine similarity.

IV. IMPACT OF FUNCTIONALITY ON TRADE DRESS AND DESIGN PATENT INFRINGEMENT

Design patents protect the ornamental, rather than functional, features of a design.79 Functional features of trade dress are likewise unprotectable under federal or common law, because to do so would limit rather than promote competition and, in the case of state law, because such protections are preempted by federal patent law.80 However, because trade dress law offers potentially perpetual protection compared with the limited duration of a design patent, functionality is defined much more broadly in trade dress law than in patent law, with the result that product similarities that support a finding of patent infringement might not support a finding of trade dress infringement. This was recently demonstrated in Apple Inc. v. Samsung Electronics Co.,81 where the features of Apple’s iPhone were found to be functional and unprotectable, while the ornamental aspects of those functional features were sufficient to support a claim of design patent infringement.

A trade dress feature is functional “if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.”82 Further, the feature “need only have some utilitarian

79. 35 U.S.C. § 171. 80. Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 231 (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 237 (1964). 81. 786 F.3d 983, 114 U.S.P.Q.2d 1953 (Fed. Cir. 2015). 82. Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n.10, 214 U.S.P.Q. 1] (1982).

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advantage to be considered functional.”83 A trade dress feature, taken as a whole, is functional if it is “in its particular shape because it works better in this shape.”84 The feature does not have to provide superior utilitarian advantages; rather to be non-functional the feature must serve no purpose other than identification.85 The Ninth Circuit has identified four factors to consider in determining functionality of a trade dress: “(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.”86

In contrast, a design is considered functional only for purposes of design patent where it is “dictated by [its] functional purpose.”87 In determining whether a claimed design, as a whole, is dictated by function, the Federal Circuit has said that one should consider whether the protected design represents the best design; whether alternative designs would adversely affect the utility of the specified article; whether there are any concomitant utility patents; whether the advertising touts particular features of the design as having specific utility; and whether an overall appearance or any elements in the design are clearly not dictated by function.88 If the design as a whole is not dictated by function, then the patent is valid. To the extent that the design includes elements that are dictated by function, they are not excluded from the infringement determination; rather the focus is on the ornamental aspects of these functional elements.89

Thus, as noted above, the collection of functional features that defined Apple’s trade dress were not protectable under trade dress law, while the ornamental aspects of those features was sufficient to support the jury’s finding of infringement of Apple’s design patents.

83. Disc Golf Ass’n v. Champion Discs, Inc., 158 F.3d 1002, 1007, 48 U.S.P.Q.2d 1132 (9th Cir. 1998). 84. Leatherman Tool Grp., Inc. v. Cooper Indus., Inc., 199 F.3d 1009, 1011-12, 53 U.S.P.Q.2d 1196 (9th Cir. 1999). 85. Apple Inc. v. Samsung Elecs. Co., 786 F.3d 983, 114 U.S.P.Q.2d 1953 (Fed. Cir. 2015). 86. Disc Golf Ass’n v. Champion Discs, Inc., 158 F.3d 1002, 1007 (9th Cir. 1998). 87. Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1294, 93 U.S.P.Q.2d 1937 (Fed. Cir. 2010). 88. Nordock, Inc. v. Sys. Inc., 116 U.S.P.Q.2d 1650 (Fed. Cir. 2015). 89. Apple Inc. v. Samsung Elecs. Co., 786 F.3d 983, 114 U.S.P.Q.2d 1953 (Fed. Cir. 2015).

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Apple iPhone U.S. Patent

No. D604,305 Samsung Phone

V. SUMMARY A business seeking to enforce both its design patent and trade

dress rights against a competitor must make related, but different, showings to prevail in both causes of action. To show design patent infringement, the owner of the design patent must show that the accused product embodies the patented ornamental design or a colorable imitation thereof by showing that the accused product is so similar to the design depicted in the design patent as to deceive an ordinary observer applying the same attention that a purchaser would.90 In response, the accused infringer may identify similar prior art designs to highlight differences between the claimed and accused designs that otherwise might not be noticeable without that knowledge.91

In contrast, to show trade dress infringement, the owner of the trade dress must show that it is likely that consumers of the products will be confused about the source or origin of the products because of their similarity in appearance. There are a number of things that can interfere with establishing a likelihood of confusion, including differences in the overall products (including those portions purposefully excluded from the design patent); labeling and disclaimers; the sophistication of customers and the degree of care they exercise; the lack of distinctiveness of the trade dress and the current use of similar trade dress by third parties.

90. Gorham Co. v. White, 81 U.S. 511, 531 (1871). 91. Egyptian Goddess Inc. v. Swisa Inc., 543 F.3d 665, 88 U.S.P.Q.2d 1658 (Fed. Cir. 2008).

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(Prior uses, no longer in the marketplace, while potentially fatal to a design patent, generally do not affect likelihood of confusion in the present). While a simple comparison of the products can go a long way toward establishing the similarity of the designs in a design patent case, the trade dress owner must account for the various factors under the applicable multi-factor analysis. Instances of actual confusion, or a survey establishing consumer confusion, although not required, are highly probative and often dispositive of likelihood of confusion.

VI. CONCLUSION While the likelihood of confusion test for trademark

infringement appears on its face to be similar to the ordinary observer test for design patent infringement, and a product that infringes trade dress may also infringe a design patent, the factors in a typical multifactor likelihood of confusion analysis do not apply directly to a determination of design patent infringement.

Design patent infringement can be easier and less expensive to prove than a trade dress infringement because the owner of a design patent does not have to prove that the patented design has acquired secondary meaning, or has even appeared in the marketplace. Furthermore, design patent infringement is shown simply by substantial similarity to the ordinary observer (giving the same attention as a prospective purchaser, but not necessarily a prospective purchaser) of the accused design with whatever portions of the design the patent owner chose to include, and not the entire product as it appears in the market place. Finally, the design patent applicant has the ability to control what aspects of the design are protected, focusing on important features and omitting from the patent features that are unlikely to be copied by competitors.

On the other hand, although it is potentially more difficult to prove trade dress infringement, there is no requirement that trade dress be novel or non-obvious, as there is for a design to be patentable. While an application for a design patent must be filed within a year of public disclosure of the design, there is no such limitation on establishing trade dress rights, and, in fact, the longer the design has been used before rights are asserted, the stronger those rights may be. Another important difference between design patent rights and trade dress rights is that design patents have a finite life of fifteen years,92 while trade dress rights can last at least as long as the trade dress is in use. Lastly, a design patent offers monopoly protection against any substantially

92. Patents issued from design applications filed before May 13, 2015, are granted for the term of fourteen years from the date of grant.

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similar subsequent design, while trade dress only protects against a likelihood of confusion, no matter how similar the designs.