Lisa Frank, Inc. v. Orb Factory Ltd., No. 15-cv-00433 (D. Az. filed Sept. 16, 2015)
and the like. Lisa Frank’s claimed trade
the following elements, depending upon the product and its packaging, that
create a unique overall image and distinct visual impression … (1) brightly
colored bold graphics of distinctive animal characters depicted individually or
grouped with one or more other such characters, with rainbow colored features,
large eyes, and happy, friendly expressions; (2) use of brilliant, often
rainbow sequenced, colors, graduated color sequences, and rainbow colors that
fade into one another …; (3) package, cover and product surface designs
featuring, in addition to the distinctive animal characters, combinations of
rainbows, flowers, ice cream cones, butterflies, birds, rabbits, fish,
cupcakes, bubbles, peace symbols, random words, hearts, happy faces, and stars,
often in groups including colorful backgrounds employing rainbow colors, color
fades and Lisa Frank pink, props and landscape features such as trees, pools,
and snow; and (4) product packaging incorporating the look and feel of the
lifestyle. There’s a reason that courts
want a clear definition of trade dress that doesn’t just encompass an idea or a
“look and feel,” and this case is that reason.
claim these items infringed—it’s hard to imagine a more anticompetitive
claim. What are these craft projects supposed to look like? Assuming the plaintiff hadn’t yet consulted with counsel, I can just barely see the point (again, no pun
intended) of the claims against the first mosaic box, although again this seems
to claim a monopoly over concepts like the rainbow and the big-eyed unicorn:
accused products have very few of the features claimed (oh, and also, since it’s
product design trade dress, plaintiff needed to plead nonfunctionality, and
would probably have a hard time doing so for many of these features given the
utility of using big-eyed owls etc. in selling products to young kids, as I
have reason to know directly).
Just FYI, here is one of
many, many results for “tiger cub cartoon” on Google images. You will probably be shocked to hear that
they have big eyes, fluffy big ears, white bibs and chins, and cheek stripes.
lawsuits. I hope defendant seeks fees
and gets them.
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