USPTO Tag

Important Trademark Litigation Victory For HBA Client Affirmed on Appeal

Essentially concluding over five years of litigation, the Second Circuit Court of Appeals on November 2, 2017 upheld the trial court’s determination that the sale of Clipps bag closures by Schutte Bagclosures Inc. (“Schutte”) did not infringe any trademark rights Kwik Lok Corporation (“Kwik Lok”). The court further upheld the lower court’s determination that Kwik Lok’s claimed trademark rights in the shape of bag closures were invalid because the shape was “functional” and that Kwik Lok’s trademark registration for that shape should be cancelled.
The same parties previously faced each other in court in the Netherlands, where the judge also ruled that Kwik Lok did not have valid trademark rights in their bag closures.

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Lululemon Sues Under Armour For Design Patent Infringement Based on Sport Bra Strap Design

On July 7th, athletic apparel company Lululemon Athletica filed suit against competitor Under Armour, alleging that three models of Under Armour sport bras infringed on design patents held by Lululemon as well as Lululemon’s trade dress.  Specifically, Lululemon asserted that the interwoven strap design on Under Armour’s products closely resembled designs protected by patents Lululemon filed in 2014 and 2016, as well as a design first sold by Lululemon in 2011 as part of its Energy Bra model.

Design patents typically do not offer wide protection for fashion products. While relatively cheap to obtain compared to utility patents, design patents typically still cost several thousand dollars to register.  Furthermore, design patents can only be obtained if an item has been on sale for less than a year and fashion designers often do not want to commit to a registration until and unless a design demonstrates that it will be a core product line going forward.  Trade dress, on the other hand, does not require any formal filing with the United States Patent and Trademark Office (USPTO). However, those seeking trade dress protection must also prove that the design has no functional component, as well as prove that the item conveys a distinctive secondary meaning to consumers that would be jeopardized by the sale of imitations.

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