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Lanard Toys Ltd. v. Dolgencorp LLC

Useful Item Itself is Not Copyrightable

Lanard Toys Ltd. v. Dolgencorp LLC, __ F.3d __, 2020 WL ___ (Fed. Cir. May 14, 2020) (LOURIE, Mayer, Wallach) (M.D. Fla.: Howard) (2 of 5 stars)

Fed Cir affirms summary judgment of no liability on claims for design patent, copyright, and trade dress infringement, and unfair competition. Lanard’s claims relate to a toy chalk holder designed to look like a pencil.

Design patent: The district did not err in construing Lanard’s design patent. Noting that several features of Lanard’s design had functional elements, the opinion describes how the district court properly identified the design’s non-functional aspects of the design. The district court also did not err in its infringement analysis, and the opinion describes how the district court properly considered the ornamental features and their impact on the overall design when comparing Lanard’s design patent to the accused product. The district did not err by taking into account prior art when construing Lanard’s design patent. The opinion criticizes Lanard for emphasizing similarities between its own product and the accused product; the correct comparison is between Lanard’s design patent and the accused product.

Copyright: The district court correctly determined that Lanard does not own a valid copyright. The opinion describes how Lanard’s copyright was for a useful item “itself,” which was not copyright protectable, and discusses Star Athletica, 137 S. Ct. 1002 (2017), and Progressive Lighting, 549 F. App’x 913 (11th Cir. 2013).

Trade dress: The district court did not err in determining that Lanard had failed to present evidence that its product had acquired secondary meaning. That it had “sold a lot of units,” without more, did not show “how those customers view [the product].” Op. at 15.

Unfair competition: Because these claims rested entirely on the infringement claims, there was no error in the district court’s summary judgment.

KEYWORDS: DESIGN PATENT; COPYRIGHT; TRADE DRESS