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.

Ego is Grounds for Cause of Action in Inventor Dispute

Socrates once said “the way to a good reputation is to be what you desire to appear.”  For one man, he wanted to be a named inventor.   

In an action against his former employer, Seagate, Mr. Shukh filed an action in federal district court charging that his reputation was harmed by Seagate’s failure to include him as an inventor on 6 Seagate patents.  The district court dismissed the action finding that Mr. Shukh did not provide sufficient evidence to support his case.  However, the Federal Circuit Court of Appeals that hears patent cases, vacated the lower court’s decision.  The court found that “being considered an inventor of important subject matter is a mark of success in one’s field comparable to being an author of an important scientific paper.” 

What’s the take away here?  If you are an inventor, and you are not identified as such on a patent application or issued patent, you may have a case against your employer based on harm to your reputation.  As the court stated, if you are correctly an inventor of important subject matter, being recognized as such is a mark of professional success.  Failure to be properly included as an inventor may harm one’s reputation which may be actionable.

Capitalizing on innovative developments is critical to any organization.  Having the right person to help you make those decisions 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.