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.