How to analyze fame on the pleadings

Leapers, Inc. v. SMTS, LCC,  2014 WL 4964376, No. 14–CV–12290 (E.D. Mich. Oct. 3, 2014)
Leapers alleged trade dress rights “in the distinctive scalloping design applied to the adjustment knobs and bells of its rifle scopes and/or sights” which were allegedly both “distinctive and non-functional” as well as “famous and … widely recognized by the general consuming public of the United States as a designation for the source of the goods of Leapers.”  Defendants allegedly infringed and diluted the mark.
The description of the alleged trade dress was sufficiently precise to sustain the infringement claims, and was identifiable in the photos attached to the complaint.  Defendants argued that the grooves served a function, and that Leapers didn’t plead nonfunctionality with sufficient particularity.  “Although the court will be keen to learn how Plaintiff’s ‘scalloping’ design is no more than decoration, that it is neither in any way ‘essential to the use or purpose of the article,’ nor a feature that significantly ‘affects the cost or quality of the article,’ at the pleadings stage a simple, and illustrated, assertion of non-functionality shall be sufficient.” Likewise, the complaint’s allegations about Leapers’ efforts over the past twenty years in advertising and otherwise developing its marks was enough to plead secondary meaning.
Not so fame.  Under the case law, famous marks include Audi, Victoria’s Secret, Nissan, Nike, Rolex, Pepsi, and “the iconic … classic Hershey’s bar” design.  Niche fame isn’t enough.  Grease pumps, the Texas Longhorns logo, MENSA, Quicken Loans, and the red seal on Maker’s Mark whisky aren’t famous.  Even assuming fame in the firearms community, “it is implausible that Leapers can support its conclusory assertion that Leapers’ ‘marks have become distinctive and famous and are widely recognized by the general consuming public of the United States.’”  (Footnote: the court comments that Maker’s Mark didn’t appeal its loss on dilution, “which is fitting given that Maker’s Mark is best undiluted.”  Cute—if not entirely logical.)
That’s the way to do a fame analysis on the pleadings.  Later in the day I’ll have another case that, in evaluating a defendant’s default, wrongly accepts a ridiculous and similarly conclusory allegation of federal fame.  “Famous” here is a legal conclusion, not a factual allegation, given that fame is defined using a multifactor test in the statute.

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