Fishing for Trademark Infringement; Design Patent Gets the Hammer

Look at this: two in one day.  Yes, two posts.  Count ‘em, one-two.  Ok, so it’s hardly the New York Times, but then again, I do have a day job.

And in keeping with two, just two quick notes (in case I never get around to writing the full story on these) on two cases:

The first, just filed: Pepperidge Farm Inc., maker of the Goldfish crackers (aka food you shouldn’t be serving those you love – fish yes; fish shaped crackers made in processing plant, no) is suing Gymboree Corp. for trademark infringement claiming that the tyke-clothing-co/mall-favorite’s line of kids’ garb (called “Little Goldfish”) infringes the Farm’s Goldfish marks.  Umm, likelihood of confusion mean anything to you folks?  Somebody might consider eating more fish – and not the gold kind.

The second case is a recent decision out of the Fed Cir. (hey, the second for today!) in which the learned judges upheld a lower court’s decision that tool maker Stanley Works, Inc. did not – did not (hey, it’s two-fer day) infringe a patent for a combination hammer-crowbar when making its Fubar product.  The court ruled that a product’s functional elements must be discounted when analyzing whether a design patent has been infringed.

Now, who comes up with a combo hammer-crowbar?  And are they doing time?

Jonathan Pink is a business attorney specializing in intellectual property and commercial litigation.  He is resident in the Irvine (Orange County) and Los Angeles Offices of Bryan Cave, LLP.