Bern Unlimited, Inc. v. Burton Corp.
This article previously appeared in Incontestable Trademark Newsletter - June 2013.
CASE SUMMARY
FACTS
Plaintiff Bern Unlimited, Inc. ("Bern") sued five competitors for infringement of the trade dress of its protective sports helmet trade dress consisting of a "rounded profile of the helmet" and "distinctive visor." While Bern's original suit sought relief for design-patent infringement against Burton Corporation alone, it subsequently amended its complaint to include all five defendants and include claims of trade-dress infringement, dilution, and unfair competition.
Defendants, who also make helmets for biking, skiing, snow, and water sporting, moved for summary judgment on all claims, alleging that plaintiff's trade dress was functional and therefore unprotectable. Defendants' functionality argument relied on evidence of advertisements by plaintiff touting the functional benefits of certain helmet attributes. Examples include describing the visor as "giv[ing] skaters a much needed brim in sunny locales and com[ing] in handy during rainy day sessions as well," and the helmet shape as "ergonomically fit[ting] around your head instead of on top of it providing full protection."
ANALYSIS
The district court relied on the analysis set forth in In re Morton-Norwich Products, Inc. ("Morton-Norwich Factors") 671 F.2d 1332 (CCPA 1982), in evaluating the alleged functionality of the helmet trade dress, including: (1) the existence of a utility patent disclosing the utilitarian aspects of the design; (2) advertisements in which the designer promotes the functional aspects of the design; (3) the availability of functionally equivalent alternative designs, and 4)...
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