U.S. Design Patent D517,778 - Ivy Fishing Hat
Note the "C" on the hat. C = Chicago Cubs? Wrigley Field? Ivy-covered walls? Get it?
Issued: March 28, 2006
Inventor: Matther Steichen, Carol Stream, Illinois
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March 31, 2006
March 30, 2006
LEGO 101: protection, disputes, litigation
THE LEGO BRICK--IN THE BORDERZONE BETWEEN FORMS OF PROTECTION [105pp., pdf]
Master Thesis By Jenny Lundahl
This thesis is a case study on the attempts of the LEGO Group to achieve legal protection of the Basic LEGO Brick, i.e. the LEGO Group’s standard toy building brick with eight bosses on the upper surface. The objective is to illustrate the legal reasoning of different courts in a global perspective and find out how a company such as LEGO uses the courts and intellectual property rights for the purpose of attaining a certain desirable position on the market.
...
In the thesis the LEGO Brick will also serve as a subject matter for discussion about possible implications on overlapping intellectual property rights. As the LEGO Group has succeeded in protecting it with different intellectual property rights the LEGO Brick is the ideal subject matter for such a discussion.
[Via: http://www.wipo.int/sme]
U.S. Trademark Registration No. 3,072,726
Issued: March 28, 2006
Registrant: Ameribag, Inc., Kingston, New York
For: Shoulder Bags and Tote Bags
First Use: 9-30-1993; In Commerce: 9-30-1993
The mark consists of the configuration of a shoulder bag.
Section 2(f)
Shape Blog note: Section 2(f) evidence included dealer declarations and "look-for" advertising.
March 29, 2006
Lawman Armor's Petition for Rehearing
At his excellent Patently-O patent law blog, Dennis Crouch discusses the Lawman decision and provides Appellant Lawman Armor's "Combined Petition For Panel Rehearing And For Rehearing En Banc Of Plaintiff-Appellant Laman Armor Corporation." Download Petition here
Dennis Crouch
In its Petition, Lawman asserts that the CAFC's ruling that a combination of known elements cannot comprise a "point of novelty" for infringement purposes leads to the "logical yet impossible" conclusion that "valid design patents can issue and not be capable of being infringed."
IDSA Amicus Brief Filed in Lawman Appeal
The Industial Design Society of America (IDSA) has filed its amcus brief, penned by design patent guru Perry J. Saidman, in the Lawman case. Download brief here
The following is the Summary of the Argument quoted from the brief:
"For the first time, this Court has held that a combination of old elements shown in the prior art cannot constitute a point of novelty in determining infringement of a design patent. There are five reasons why it is exceptionally important for this holding to be reconsidered.
"First, the Panel decision ignores the real world reality that all designs are combinations of old elements. If left to stand, the Panel decision would render a vast number of valid design patents unenforceable.
"Second, the Panel's fear that permitting a combination of old elements to be a point of novelty would undermine the rationale of the point of novelty test is unfounded. If a valid patent's point of novelty were found to reside in a combination of old elements, the design patent would be narrow. To enforce it against an infringer who appropriated that same combination of old elements serves the interest of justice. There is nothing untoward about enforcing narrow, as well as broad, design patents.
"Third, the Panel decision encourages "back door" attacks on design patent validity using a much lower burden of proof that would otherwise be required. Why should an infringer be permitted to prove that a patent's point of novelty, that distinguishes it over the prior art, is old using a preponderance of evidence standard rather than a clear and convincing standard required of invalidity showings?
"Fourth, there is no precedent for the Panel decision. All courts that have previously considered the issue have found that a combination of known elements may well constitute the point of novelty.
"Fifth, the underlying factual determination that all 8 of Lawman's novel elements were found in the prior art is clearly erroneous. In order to anticipate a novel design element, the visual appearance of the design element must be in the prior art, rather than its functional attributes.
"In sum, this Court should reconsider and reverse the Panel's conclusion that a combination of old elements shown in the prior art cannot constitute a point of novelty in determining infringement of a design patent."
March 28, 2006
U.S. Design Patent D371,912 - Chair/Desk Relaxation Office Set
Issued: July 23, 1996
Inventor: Arvin Peltz
March 27, 2006
Nike files Amicus Brief in Lawman Appeal
Nike, Inc. has filed its amicus brief with the CAFC in the Lawman v. Winner design patent case. [Download brief here]
Nike arges that the decision should be reconsidered and revised "for at least three reasons:"
"First, because every design can, at some level, be described as a combination of known elements, Lawman's newly created rule that a point of novelty cannot reside in a combination of known design elements will render otherwise valid and enforceable patents "uninfringeable." This result contradicts the Patent Act by rendering the exclusive rights conferred to design patent owners a nullity.
"Second, Lawman ignores this Court's own longstanding precedent. Importantly, at least a trio of Federal Circuit cases stands for the proposition that a point of novelty can reside in a combination of known design elements. Hence, the new point of novelty rule applied in Lawman should be reconsidered.
"Third, Lawman fails to apply the point of novelty test consistent with its intended purpose, effective turning an infringement test into one for validity."
March 24, 2006
U.S. Design Patent D517,593 - Musical Symbol
Ok, it's only two-dimensional, but this is one of the strangest design patents I've seen.
Inventors: Chritopher and Elza Lusher
Issued: March 21, 2006
"The broken line showing of environment is for illustrative purposes only and forms no part of the invention."
March 23, 2006
Briefs Amici WIll Urge Re-Hearing of Lawman Decision
March 22, 2006
CAFC Affirms TTAB Ruling that Clothing Features = Product Configuration Trade Dress
The TTABlog reports here on yesterday's CAFC decision in In re Slokevage, Appeal No. 05-1389 (March 21, 2006), affirming the TTAB's ruling that Slokevage's clothing features constitute product configuration trade dress and therefore require proof of secondary meaning in order to qualify for registration on the Principal Register.
March 21, 2006
USPTO Design Day Seminar - April 10, 2006
On April 10, 2006, the place to be will be "USPTO Design Day" at the United States Patent and Trademark Office: "an open forum with USPTO officials on the state of the USPTO's Design Examination Group, including a discussion on New Examining training, publication and electronic filing." There is no fee to attend, but you must register in advance (form here).
USPTO Design Day
United States Patent and Trademark Office
Madison Building Auditorium (South)
April 10, 2006
8:00 AM - 4:30 PM
"The afternoon session will include a dynamic and informative exchange designed to educate the patent bar and design patent examiners on the design patent process and the unique role that design patents play across a range of industry sectors."
March 20, 2006
Blades Per Razor Extrapolated
Via The Economist.
US Design Patent D475,467 - Restaurant Building Interior
Issued: June 3, 2003
Inventors: Rolando Lantigua and Carlos Taveres
March 17, 2006
Upper Deck Hologram Trademarks
The Upper Deck Company owns at least two United States Registrations for "hologram" trademarks for "trading cards": Regs. Nos. 2,710,652 and 2,360,979. The mark of the former registration is in the shape of a rectangle on a diamond (see PTO drawing immediately beolw), while the latter is in the shape of a hockey puck.
Upper Deck didn't fare so well, however, when it attempted to register the "holgram" mark shown below:
"The mark consists of a hologram device applied to the goods, trading cards. The mark is discrete from and does not constitute a part of subject matter of the trading card. Neither the size nor the shape of the hologram device, nor any content which may be represented within the hologram device, nor the positioning of the hologram device on the trading card are claimed as features of the mark. The drawing is lined for the color silver, but color is not claimed as a feature of the mark."
In In re The Upper Deck Co., 59 USPQ2d 1688 (TTAB 2001), the Trademark Trial and Appeal Board affirmed a refusal to register this alleged mark because it is a "phantom" mark: i.e., the Board found that Upper Deck's hologram, without further definition, constituted more than one "device" or mark, as contemplated by Section 45 of the Trademark Act.
March 15, 2006
Holograms for Trademarks?
IP Counsel Blog: Could Holograms Be The Next Generation Of Trademarks?
Are holograms the next 
?
Lance Armstrong's LIVESTRONG bracelets
Topic: Lance Armstrong's LIVESTRONG bracelets
Question: How can you protect them?
Answer #1: trademark applications based on 3D appearance
Answer #2: trademark application covering the words LIVESTRONG
Serial Numbers: 76/644416 and 76/644417
Description of Mark: The mark consists of the appearance and three-dimensional design of a rubber wristband with the word LIVESTRONG impressed on the band.
Distinctiveness Limitation Statement: as to "the appearance and three- dimensional design of a wristband"
Registration/Serial Numbers: 76/977737, 3,052,284, 78/702767, 78/821024
Answer #3: trademark application covering yellow wristbands
Serial Numbers: 78/706554, 78/706562, 78/706563, 78/706568
Descriptions of Mark:
(1) The color(s) Yellow is/are claimed as a feature of the mark. The mark consists of the color yellow, which is used on bands. The matter shown in broken lines is not part of the mark;
(2) The color(s) Yellow is/are claimed as a feature of the mark. The mark consists of a three-dimensional design of a band.
(3) The color(s) Yellow is/are claimed as a feature of the mark. The mark consists of the color yellow, which is used on bands.
Any other ways to protect them (comments are open)?
March 14, 2006
Plaintiff/Appellant Seeks Re-hearing in Lawman Design Patent Appeal
Plaintiff Lawman has reportedly filed a request for re-hearing of the CAFC's decision in Lawman Armor Corp. v. Winner Int'l LLC, Appeal No. 05-1253 (February 22, 2006). As discussed here at the Shape Blog, this decision deals a damaging blow to design patent protection.
U.S. Design Patent D357,621
We are informed that the American Intellectual Property Law Association (AIPLA) is considering the filng of an amicus brief in support of this first attempt by Lawman to reverse the appellate court's ruling.
2006 World Cup Soccer Ball
adidas' Teamgeist is the official match ball of the 2006 FIFA World Cup in Germany.
March 13, 2006
The Pie Watch
My favorite watch. From Time by Design.
U.S. Design Patent D348,403
Title: Wristwatch
Inventor: James Sener
Issued: July 5, 1994
Can you tell what time it is?
March 10, 2006
Wrigley Sues Cadbury Over TRIDENT And DENTYNE Trade Dress
Our related blog TRADEMARK BLOG, on a somewhat odd trade dress complaint filed by Wrigley relating to TRIDENT and DENTYNE packaging.
U.S. Design Patent D-508,956: Sign Indicating Status of Occupant of Cubicle or Office
Santa, please bring me one of these !!
Issued August 30, 2005
Inventor: Nancy Lindblad Gaston
March 09, 2006
Definition of Confusingly Similar BOUNTY Trade Dress
From the Consent Judgment and Permanent Injunction in P & G v. McLane Company, 3:05 CV 0427 (WHR) (SD Ohio Feb 23 2006):
" . . . Packaging shall be deemed substantially similar . . . if it includes the element described in paragraph 'a' or an oval graphic in combination with any three or more of the elements listed in paragraphs 'b' through 'g.' Nothing herein should be construed to mean that Defendants' use of fewer than the foregoing elements is authorized or approved by P & G or the Court . . .
a - The cornucopia graphic, in equity colors of green, organge, yellow and blue, which is centered on the package - specifically, the use of an identical oval shape using gradients of yellow and magenta to create an orange center, surrounded by a wide green 'swoosh' and a blue accent;
b - The overall impression of the equity color being green;
c - The use of gradient colors;
d - The use of bold, black block lettering to display the brand name within the cornucopia graphic, with an initial capital letter;
e - The upward slope of the brand name, from left to right;
f - The use of a bowtie graphic centered to the lower half of the packaging; or
g - The repeated use of the cornucopia graphic and bowtie graphic on the back of the package.
March 08, 2006
Try Your Hand At Defining Confusingly Similar Trade Dress
How would you define what a confusingly similar trade dress to that of BOUNTY TOWELS (shown above) consists of? Answer soon.
US Design Patent D450,133 - Food Processing and Serving Area for a Restaurant
Ever thought of a design patent for a restaurant interior? Here's one.
Inventor: Jasper White.
Issued: November 6, 2001.
Where found: SUMMER SHACK restaurants.
March 07, 2006
Bruce Sterling: The Internet of Things
Early Vendors For Personal Fabrication
eMachineShop.com, 'the first true online machine shop.' You draw your design and they will fabricate it.
Gizmodo article here.
Wired article here.
March 06, 2006
Welcome To Shape Blog
Welcome to Shape Blog, a joint venture of the IP law blogs ReThink (IP), the TTABlog, and the Trademark Blog.
The Shape Blog has two subjects.
The first subject is an 'inter-disciplinary' analysis of the protection of design and three-dimensional objects. Practitioners experienced in trademark, trade dress, copyright and patent law will provide news and commentary on the legal treatment of design and any object that incorporates design.
The second subject will be 'personal fabrication.' The creation of Shape Blog was inspired by the book 'Fab' by Professor Neal Gershenfeld To over-simplify:-just as the dropping prices and widespread dissemination of computing power led to the personal computing revolution, dropping prices and dissemination of CAD/CAM techniques will lead to a personal fabrication revolution, where the average home will have the ability to 'fabricate' exact replicas of three-dimensional objects (replacement parts, artworks, furniture) according to software instructions, perhaps downloaded from the Internet.
We will therefore be tracking not only advances in IP protection but advances in the technologies that may lead to a personal fabrication industry (such as desktop prototyping).
In short, we will be discussing the opportunities and dangers that arise for design when you can email an Eames Chair.
March 03, 2006
CAFC Reverses Summary Judgment of Copyright and Design Patent Infringement re Furniture Designs
The U.S. Court of Appeals for the Federal Circuit today reversed a California federal district court's grant of summary judgment in a copyright and design patent infringement case involving several bedroom furniture designs. The court concluded that the district court had misapplied the applicable tests for infringement. Amini Innovation Corp. v. Anthony California, Inc., Appeal No. 05-1159 (Fed. Cir. March 3, 2006).
US Design Patent D475,218
BED FRAME
On the copyright side, the district court mistakenly decided "the fact intensive question of the total concept and feel of the carvings in the furniture." Applicable 9th Circuit law disfavors the grant of summary judgment on that issue. The CAFC found that "a reasonable jury could conclude that at least some of the accused designs satisfy the substantial similarity standard." Therefore summary judgment was inappropriate.
On the design patent side, in considering the infringement issue the district court analyzed each element of the design separately insted of analyzing "the design as whole from the perspective of an ordinary observer." The CAFC could not agree that a reasonable jury could not find that the designs in question are substantially similar. Again, the granting of summary judgment on this issue was in error.
The case was remanded to the district court for further proceedings.
March 01, 2006
Trademark Application For Bottle Cap
U.S. Trademark Application SN 78643174. The mark consists of 'design of a bottle cap with the words NO-CAL.'
So what does this protect? This isn't a 3-D mark, it's a 2-D mark in the shape of the outline of a bottle cap. I suspect that another soda company could have a logo in the shape of a bottle cap as well. But they may not be able to use a design that looks like this.