IP News

Background

P & P Imports, LLC (P & P) sued a competitor Johnson Enterprises, LLC (Johnson) for trade dress infringement under the Lanham Act. P &P sells outdoor games and sporting goods, which include an outdoor variation of the game Connect 4 with a red, white, and blue color scheme. In 2017, Johnson bought a copy of the P & P Game and sent samples to its manufacturer in China. In October, 2017, Johnson began to sell an identical version of the P & P game with identical color, style, and size game pieces. As a result, P & P sued Johnson for trade dress infringement. Johnson moved for summary judgment arguing that P & P's trade dress did not acquire secondary meaning. The district court granted Johnson's motion for summary judgment and held that the plaintiff did not meet its burden. In particular, the district court held that under Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958 (9th Cir. 2011), P & P was required to prove that consumers associate the trade dress with P & P, rather than with any single company. The court found that P &P's expert's testimony and evidence were insufficient to prove customers associate the trade dress with P & P. P & P appealed and challenged the district court's holding that P & P's trade dress did not acquire secondary meaning.