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Arlington Specialties Inc. v. Urban Aid, Inc.

United States Court of Appeals, Seventh Circuit

January 27, 2017

Arlington Specialties, Inc., Plaintiff-Appellant,
v.
Urban Aid, Inc., Defendant-Appellee.

          Argued September 15, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. l:13-cv-04180 - Sharon Johnson Coleman, Judge.

          Before Flaum, Manion, and Hamilton, Circuit Judges.

          Hamilton, Circuit Judge.

         This Lanham Act case turns on whether the shape and design of a small bag, modeled after a men's Dopp Kit and used in personal care kits, are functional and therefore not protected as trade dress. Plaintiff sells personal care kits in such a bag. When another personal care kit seller copied plaintiff's bag, plaintiff sued, claiming the bag was protected trade dress. The district court granted summary judgment in defendant's favor, finding that the bag's design and shape were functional. We agree, so we affirm the district court's decision.

         I. Factual and Procedural Background

         Plaintiff Arlington Specialties, Inc. does business as Pinch Provisions. It sells personal care kits: small bags containing small portable toiletries like hairspray, stain remover, and deodorant. Plaintiff's products include a line of kits called "Minimergency Kits, " which come in small fabric bags designed to look like men's Dopp Kits (ironically enough, a now-cancelled trademark for travel kits, originally for men's shaving gear, used widely by the military in World War II). A picture of plaintiff's bag is Appendix A to this opinion.

         Defendant Urban Aid, Inc. also sells personal care kits. It agreed to create a custom kit for a shoe distributor that wanted to use the kits as part of a sales promotion. The shoe distributor wanted the kits to come in a bag similar to plaintiff's bag, and it gave Urban Aid a picture of plaintiff's bag to work from. Urban Aid obliged; side-by-side images of the two parties' bags are Appendix B to this opinion.

         After the shoe distributor began its sales promotion, plaintiff filed suit in the Northern District of Illinois. It claimed that the shape and design of its bag were protected trade dress, that Urban Aid's bag violated the Lanham Act, the Illinois Uniform Deceptive Trade Practices Act, and the Illinois Consumer Fraud and Deceptive Business Practices Act, and that Urban Aid's bag tortiously interfered with plaintiff's prospective business relations.

         Urban Aid moved for summary judgment on four grounds: that plaintiff's trade dress was generic, that it was functional, that it lacked secondary meaning, and that Urban Aid's design caused no likelihood of confusion. The district court found that plaintiff's claimed trade dress was functional as a matter of law. Arlington Specialties, Inc. v. Urban Aid, Inc., No. 13 CV 4180, 2014 WL 4913531, at *3 (N.D. 111. Sept. 30, 2014). Because all of plaintiff's claims depend on whether the claimed trade dress is protectable, the court granted summary judgment for the defendant on the federal Lanham Act claim and the related state-law claims. Id. at ""4. Plaintiff has appealed.

         II. Analysis

         We review de novo a district court's grant of summary judgment; we view the evidence in the light reasonably most favorable to the non-moving party and must affirm if no reasonable trier of fact could find in favor of the non-moving party. White v. City of Chicago, 829 F.3d 837, 841 (7th Cir. 2016). We agree with the district court that the undisputed facts show here that plaintiff's claimed trade dress is functional and therefore not protected by the Lanham Act.

         A. Trade Dress and Functionality

         The Lanham Act establishes a cause of action against any "person who ... in connection with any goods or services" uses "any word, term, name, symbol, or device" which "is likely to cause confusion" as to the good or service's source. 15 U.S.C. § 1125(a)(1)(A). That protection can extend to "trade dress, " such as the design or packaging of a product that is so distinctive as to identify the manufacturer or source. TrafFix Devices, Inc. v. Marketing Displays, Inc.,532 U.S. 23, 28 (2001); Two Pesos, Inc. v. Taco Cabana, Inc.,505 U.S. 763, 768 (1992); Blau ...


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