Thursday, October 15, 2015

A technicolor rainbow of a case: Lisa Frank sues craft company for selling crafts

Lisa Frank, Inc. v. Orb Factory Ltd., No. 15-cv-00433 (D. Az. filed Sept. 16, 2015)

Lisa Frank makes tchotchkes, supplies for kids, paper goods, and the like.  Lisa Frank’s claimed trade dress is
the combination of some or all of the following elements, depending upon the product and its packaging, that create a unique overall image and distinct visual impression … (1) brightly colored bold graphics of distinctive animal characters depicted individually or grouped with one or more other such characters, with rainbow colored features, large eyes, and happy, friendly expressions; (2) use of brilliant, often rainbow sequenced, colors, graduated color sequences, and rainbow colors that fade into one another …; (3) package, cover and product surface designs featuring, in addition to the distinctive animal characters, combinations of rainbows, flowers, ice cream cones, butterflies, birds, rabbits, fish, cupcakes, bubbles, peace symbols, random words, hearts, happy faces, and stars, often in groups including colorful backgrounds employing rainbow colors, color fades and Lisa Frank pink, props and landscape features such as trees, pools, and snow; and (4) product packaging incorporating the look and feel of the products.
Comment: that’s not a trade dress; at best, that’s a lifestyle.  There’s a reason that courts want a clear definition of trade dress that doesn’t just encompass an idea or a “look and feel,” and this case is that reason.
Separately, but not unrelatedly, take a look at the accused products:

Frankly, no pun intended, I’m astounded that plaintiff would claim these items infringed—it’s hard to imagine a more anticompetitive claim.  What are these craft projects supposed to look like?  Assuming the plaintiff hadn't yet consulted with counsel, I can just barely see the point (again, no pun intended) of the claims against the first mosaic box, although again this seems to claim a monopoly over concepts like the rainbow and the big-eyed unicorn:
So, not only is the claimed “trade dress” unbounded, the accused products have very few of the features claimed (oh, and also, since it’s product design trade dress, plaintiff needed to plead nonfunctionality, and would probably have a hard time doing so for many of these features given the utility of using big-eyed owls etc. in selling products to young kids, as I have reason to know directly).
But wait, it gets better. Here are the copyright infringement claims:

Just FYI, here is one of many, many results for “tiger cub cartoon” on Google images.  You will probably be shocked to hear that they have big eyes, fluffy big ears, white bibs and chins, and cheek stripes.
It is a lawyer’s job to talk a client out of stupid lawsuits.  I hope defendant seeks fees and gets them.

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