Intellectual Property Law

Ninth Circuit Finds No Secondary Meaning, No Foul in Trade Dress Case

By Michael Atkins

Art Attacks’ “Spoiled Brats” designs (top) and MGA’s “Bratz” dolls:
No secondary meaning, no foul

Plaintiff Art Attacks Ink, LLC, sells a “Spoiled Brats” collection of t-shirts featuring cartoonish, predominantly female characters, with oversized eyes, disproportionately large heads and feet, makeup, and bare midriffs. Defendant MGA Entertainment Inc. sells “Bratz” dolls, which, like Art Attacks’ designs, feature large eyes, heavy makeup, oversized heads and feet, and bare midriffs. Art Attacks cried foul and sued for trademark and trade dress infringement, among other claims.

A jury found for MGA on Art Attacks’ trademark infringement claim, but could not reach a verdict on its trade dress and other claims. MGA then moved for judgment as a matter of law, which the Southern District of California granted.

Art Attacks appealed. On Sept. 16 the Ninth Circuit affirmed, rejecting Art Attacks’ attempts to establish secondary meaning. With regard to Art Attacks’ arguments about purchasers’ perception, the court found:

“In its attempt to show purchaser perception of an association between the Spoiled Brats’ characteristics and a single source, Art Attacks largely reiterates its widespread dissemination arguments. Art Attacks again focuses on the number of attendees at county fairs, and additionally cites expert testimony identifying the Spoiled Brats defining features. Art Attacks correctly points out that direct survey evidence of purchaser perception is not required. Nevertheless, Art Attacks fails to demonstrate that purchasers of a product that displayed large eyes, oversized feet, and other characteristics typical of the Spoiled Brats would link that product with a single source. The only source of such evidence is the testimony of Tammie Gallagher, who said that she would associate the Spoiled Brats image with Art Attacks no matter where she saw it. Testimony from a single source is insufficient to demonstrate secondary meaning. A reasonable jury could not have found sufficient purchaser association between Spoiled Brats trade dress and Art Attacks to establish secondary meaning.”

The court also rejected Art Attacks’ proof of secondary meaning through advertising, extent and exclusivity of use, and actual confusion.

The case cite is Art Attacks Ink, LLC v. MGA Entertainment Inc., __ F.3d __, 2009 WL 2950659, No 07-56110 (9th Cir. Sept. 16, 2009).

Full post as published by Seattle Trademark Lawyer on September 17, 2009 (boomark / email).