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Ezaki Glico Kabushiki Kaisha, et al. v. Lotte International America Corp., et al.
Paid petition · United States Court of Appeals for the Third Circuit, No. 19-3010 · judgment March 10, 2021
Before the decision, roughly the 4.1% base rate. The model weighted this up for a Third Circuit decision below, a circuit split argued in the petition, and counsel who has filed here before, and down for a business respondent.
Questions presented
The Lanham Act protects trade dress from unlawful copying. Trade dress includes a product’s design, such as the red wax seal on a bottle of Maker’s Mark, the shape of the Chanel No. 5 perfume bottle, and the configuration of the Pepperidge Farm Milano cookie. To qualify for trade dress protection, a product’s design cannot be “functional,” among other requirements. At issue in this case is the test for “functionality” in trade dress law and the role of alternative product designs in creating a dispute of fact that prevents summary judgment. This petition presents two questions:
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Whether trade dress is “functional” if it is “essential to the use or purpose of the article” or “affects the cost or quality of the article,” as this Court and nine circuit courts have held, or if it is merely “useful” and “nothing more,” as the Third Circuit held below.
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Whether the presence of alternative designs serving the same use or purpose creates a question of fact with respect to functionality, where the product’s design does not affect cost or quality and is not claimed in a utility patent.
Counsel of record
For petitioner
Jessica Lynn Ellsworth
Hogan Lovells US, LLP
For respondent
Mary Declan Hallerman
Snell & Wilmer L.L.P.
Case
Conference history
Distributed for 3 conferences
Amicus briefs
4 cert-stage
Proceedings
- Mar 21 2022Rehearing DENIED.
- Feb 23 2022DISTRIBUTED for Conference of 3/18/2022.
- Dec 13 2021Rescheduled.
- Dec 01 2021DISTRIBUTED for Conference of 1/7/2022.
- Nov 23 2021Petition for Rehearing filed.
- Nov 01 2021Petition DENIED.
- Oct 13 2021DISTRIBUTED for Conference of 10/29/2021.
- Oct 12 2021Reply of petitioners Ezaki Glico Kabushiki Kaisha, d/b/a Ezaki Glico Co., Ltd., et al. filed. (Distributed)
- Sep 29 2021Brief of respondents Lotte International America Corp., et al. in opposition filed.
- Aug 16 2021Motion to extend the time to file a response is granted and the time is further extended to and including September 29, 2021.
- Aug 13 2021Motion to extend the time to file a response from August 30, 2021 to September 29, 2021, submitted to The Clerk.
- Jul 29 2021Brief amicus curiae of Mondelez Global LLC filed.
- Jul 29 2021Brief amicus curiae of Intellectual Property Owners Association filed.
- Jul 29 2021Brief amicus curiae of American Intellectual Property Law Association filed.
- Jul 29 2021Brief amicus curiae of The International Trademark Association filed.
- Jul 20 2021Motion to extend the time to file a response is granted and the time is extended to and including August 30, 2021.
- Jul 19 2021Motion to extend the time to file a response from July 29, 2021 to August 30, 2021, submitted to The Clerk.
- Jun 24 2021Petition for a writ of certiorari filed. (Response due July 29, 2021)