Monday, August 27, 2018

No need to be chicken about copying in poultry feeder case

CTB, Inc. v. Hog Slat, Inc., 2018 WL 4035945, No. 14-CV-157-FL (E.D.N.C. Aug. 22, 2018)

CTB sued HS for making an allegedly exact replica of CTB’s poultry feeder, infringing its registered trademarks for product configuration and color (color on the supplemental register).  
The parties' feeders, side by side

Pan feeders are the industry standard. The usual configuration: a pan (bottom portion in which feed collects), grill (top portion, usually made up of spokes of varying number, size, and shape), and center cone (feed distribution mechanism). Feeders are sold to roughly forty “integrators,” who own the chickens and dictate which feeders individual growers may use.  Also of relevance, CTB also had a patent for a poultry feeder, which expired in 2010. The patent said it was aimed at providing a “barrier for preventing birds and animals from bodily climbing into the feeder yet simultaneously allowing those that do force their way inside to easily exit without sustaining injury or damaging the feeder apparatus.” (It discloses a locking brood gate and a mechanism for rotationally unlocking and locking the pan structure and grill structure together.

Image from patent drawings

Right after the patent expired, CTB filed a trademark application for the configuration of its feeder, which was rejected on functionality grounds. CTB responded and the PTO issued a registration:

The mark consists of a three-dimensional configuration of a unique mechanized poultry feeder which includes a pan structure and a grill structure. When viewed from any side, the perimeter of the feeder has a generally octagonal shape as it has two generally vertical sides, one defined at the bottom of the pan structure and the other defined at the top of the grill structure, and four generally diagonal sides which inter connect the vertical sides to the horizontal sides. Internal angles between the diagonal sides and the vertical sides are generally smaller than the internal angles between the diagonal sides and the horizontal sides. The matter shown in broken lines is not part of the mark and serves only to show the position or placement of the mark.
TM registration
CTB also sought to register the configuration and the color combination of red pan and gray grill, which was rejected on functionality grounds.  Then it sought to register only the color combination, which application was rejected multiple times for lack of inherent distinctiveness and ended up on the supplemental register.
TM registration (supplemental)
Another patent owned by CTB says: “[I]t is relatively well known within the agricultural industry that adult turkeys and chickens are attracted to the color red and, therefore, many adult turkey and chicken feeding trays are now colored red in order to entice the adult turkeys and chickens to move towards the red feeding tray so that it is easier for the adult turkey and chickens to find their food.” And it touts the virtues of reflective particles, which attract feeding animals, “preferably metallic flecks or flakes, such as titanium or aluminum, or any other metallic or non-metallic material that will bond with the nonreflective material of the feeder.”

As sold, each feeder has the parties’ respective registered brand names molded onto the upper grill portion and bottom pan portion of the feeders.

Functionality: The court quoted a previous case: “TrafFix does not require that a patent claim the exact configuration for which trademark protection is sought in order to undermine an applicant’s assertion that an applied-for mark is not de jure functional. Indeed, TrafFix teaches that statements in a patent’s specification illuminating the purpose served by a design may constitute equally strong evidence of functionality.”  The expired utility patent here contrasted its supposedly better shape to prior art configurations whose “shape and configuration of the barriers” allowed “birds which force their way in the feeder apparatus [to] become trapped inside.” “This functional advance is echoed multiple times in the claims of the patent and is specifically connected to the configuration of the feeder.” This was strong evidence of functionality; the registered mark claimed the same features as the patent.  Likewise, the other patent showed every angle of the configuration as claimed in the trademark registration and didn’t acknowledge any other embodiments with different configurations.

The patent stated that the area created by the grill and its individual spokes and hub allowed for the functionality of birds entering and exiting the feeder without injury.  CTB’s ads also touted a “patented feeder grill design [that allows] young birds to exit pans easily” and so on, providing further evidence of functionality. The parties agreed that the pan underneath the grill was shaped functionally. This dicated the V-shaped profile of the pan claimed as part of the trade dress. CTB argued that the section connecting the upper grill structure to the lower pan member wasn’t functional: the “two vertical walls, partly formed from the pan structure.” However, the “double-pan lip,” as touted in CTB ads, functioned to save feed.  

The appropriate focus is the overall trade dress, but the whole trade dress was functional: this was “an arrangement of functional parts, the arrangement of which was dictated solely by functional concerns.”  Alternative designs need not be considered.

The presumption of nonfunctionality from registration had dropped from the case, and there was no evidence the configuration was dictated by any concerns other than functionality.  [What CTB submitted to PTO in response to overcome the initial rejection was basically arguments that there were other designs in the industry and that its ads and patent mostly claimed advantages that weren’t part of the identified configuration, which doesn’t seem like a strong argument to me.]

Color:  The parties’ products consisted of a red pan and a grill that is silver with metal flakes or shiny gray. Here’s a great legal sentence: “[I]t is undisputed that chickens are attracted to shiny objects.” CTB argued that metal flakes weren’t relevant because it was claiming only the color gray. But the use of metal flakes in a gray color scheme could be functional. Plus, the parties both used shiny gray, so CTB’s argument meant that it wouldn’t be using an embodiment its own trade dress, which the court thus concluded was red and shiny gray.  There was no presumption of validity here, and CTB’s own patent and ads touted the advantages of using red and shiny gray. Other CTB patents, and other industry patents, also identified red as functional for attracting poultry.  [If functional for poultry, why not for people?]  CTB’s witness Cole also testified that he conducted tests and found that red and shiny gray was close to the best.

CTB argued that there was no scientific evidence to support the conclusion that chickens are more attracted to these colors versus other colors. CTB misperceived on whom the burden lay, and didn’t show that the colors were “ornamental, incidental, or arbitrary” or were chosen for any reason other than functionality. Dismissing its own position in its patent as “apocryphal lore” couldn’t avoid summary judgment. [But might make for an interesting ad by a competitor, a la the Pizza Hut Puffery ad.] Plus, functionality is a legal conclusion, not a scientific one.

CTB argued that it could still have rights in a color combo, but “a functional arrangement of functional parts remains functional. The undisputed evidence shows that, historically, plaintiff utilized a red pan and metal grill for functional reasons, and, more recently, plaintiff utilizes a red pan and gray plastic grill with metal flakes for functional reasons.”

For some reason [which could be the difficulty in analyzing an unfair competition claim based only on labeling, especially when we know that labels often don't work], the court went on to deal with remaining unfair competition claims as a matter of failure to show damages/proximate cause instead of pointing out that functionality ended anything but, perhaps, a claim for insufficient labeling. There was no evidence of any harm, just a theory of price erosion.

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