Trade Dress Denied for Burlap Sacks Used to Wrap Flowers

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A recent court case showed that one San Francisco florist went too far in trying to protect the business.  Farmgirl Flowers began selling flower arrangements in used coffee sacks made of burlap cloth.  They promote the reuse of the burlap sacks and have a trademark registration for “Burlap Wrapped Bouquet” for cut flowers and live flower arrangements. 

Another florist, Bloom That, began wrapping its flowers in burlap and while imitation is the best form of flattery, Farmgirl brought an action against the competition to try to stop it.  Farmgirl claimed that the burlap coffee sacks were a form of trade dress.

The court disagreed.  The court determined that the burlap was primarily functional in nature and thus could not constitute trade dress.  The court found that burlap is durable, eco-friendly and had been the subject of a patent directed to wrapping flowers (US Pat. 5,706,629). 

So what’s the take away here?  While not succeeding in obtaining a trade dress registration on burlap per se, Farmgirl Flowers is succeeding in building brand awareness by using a different packaging approach. Farmgirl was not able to successfully prevent Bloom That from using burlap as a flower wrapper, but it is succeeding in building recognition by its customers and by promoting it on its website. 

If you sell a product, think about ways that you can distinguish your product from the competition.  Here the burlap coffee sacks were a relatively unique way of packaging flowers.  In your business, think of ways using color, design, materials, sounds, scents, to establish a consistent manner of presentation for a product or line of products that will be memorable to consumers.  Over time it will likely pay off.

Protecting your innovative developments is critical to any organization.  Having the right person to help you make that decision is important.  The Law Office of Kathleen Lynch PLLC is designed to help businesses such as yours keep ahead of the game.   The first telephone consultation is free.  Email us at klynch@kliplaw.com.

Court Finds Possible Copyright Protection Available in Cheer Leading Uniform

The Sixth Circuit Court of Appeals recently ruled that cheer leading uniforms may be subject to copyright protection.  In particular, in Varsity Brands vs. Star Athletica, the court overruled a district court’s holding that the Varsity Brand uniforms were not separable from the utilitarian aspects of the uniform and thus not eligible for copyright protection. 

The appellate court found that the design aspects of a cheer leading uniform can exist independently from the utilitarian ones.  The court found that Varsity’s designers “arrange various graphic elements, including stripes, lines, chevrons, angles, curves, coloring, and shapes.”  Id. at 28.  The court concluded that the arrangement of design aspects to be totally separable from the garment’s functional aspects, namely “ to cover the body, permit free movement, and wick moisture.”

What is the take away here?  Well for the fashion industry, this is good news.  The appellate court is recognizing the separation of the functional aspects of a garment from the design elements.  If that can be shown in this case, Varsity Brands may prevail on its copyright infringement claims against Star Athletica and companies moving forward may obtain copyright protection for their garments.   

Protecting your innovative developments is critical to any organization.  Having the right person to help you make that decision is important.  The Law Office of Kathleen Lynch PLLC is designed to help businesses such as yours keep ahead of the game.   The first telephone consultation is free.  Email us at klynch@kliplaw.com.

Holy Registration, Batman: The Batmobile is Copyrighted!

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It is now settled: the Batmobile is subject to copyright protection.  In a recent appellate court decision, the Batmobile was determined to have sufficient distinguishing features to entitle it to copyright protection. 

The appeal was the result of a case brought by DC Comics against the owner of a garage in Los Angeles specializing in selling Batmobile replicas.  DC Comics alleged that the garage committed copyright infringement when it sold cars that looked like the car in the 1966 television show and in the 1989 movie. 

The court agreed.  To find whether a character in a comic book, TV or movie is entitled to copyright protection, it must be shown that: (1) that the character has “physical as well as conceptual qualities”; (2) the character must be recognizable to people over time; and (3) the character is “especially distinctive”.   The Batmobile passed the court’s test and DC Comics succeeded in stopping the sale of Batmobile replicas.

What’s the take away here?  Think outside the box about how to best protect your intellectual property.  While the Batmobile may not be considered under conventional standards as a “character”, the court found it was, and its shape and likeness are now subject to protection under copyright law.

Protecting your innovative developments is critical to any organization.  Having the right person to help you make that decision is important.  The Law Office of Kathleen Lynch PLLC is designed to help businesses such as yours keep ahead of the game.   The first telephone consultation is free.  Email us at klynch@kliplaw.com.