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:
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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