©2015. Published in Landslide, Vol. 7, No. 4, March/April 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
A Flicker of Hope
Scentsy Inc. v. Harmony Brands LLC, 2014 WL 5567260, (9th Cir. 2014). Plaintiff Scentsy accused Harmony of trademark and copyright infringement over its candle warmers. The Ninth Circuit upheld the district court’s decision on summary judgment that Scentsy’s trade dress was aesthetically functional, but reversed the finding that there was no copyright infringement. The Ninth Circuit agreed with the district court that a reasonable jury could not conclude that the trade dress elements are non-functional, noting that the aesthetically pleasing nature of the designs constitutes part of the actual benefit that the consumer wishes to purchase, “as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product.”
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