Jason Scott Collection, Inc. v. Trendily Furniture, LLC

There is no “intent to confuse requirement” to support the strong inference of secondary meaning where proof of copying is shown. P & P Imports LLC v. Johnson Enterprises, LLC, 46 F.4th 953, 962 (9th Cir. 2022).

Jason Scott Collection (“JSC”) claimed Trendily Home Collection, LLC, and Raul Malhotra (“Trendily”) intentionally copied and sold designs of JSC’s. JSC was granted summary judgment on its claim of copyright infringement, and following a bench trial, its trade dress claim. See 15 U.S.C. § 1125(a)(1)(A). On appeal, Trendily argued trade dress liability was precluded because secondary meaning or customer confusion were not demonstrated below. There is no “intent to confuse requirement” to support the strong inference of secondary meaning where proof of copying is shown. P & P Imports LLC v. Johnson Enterprises, LLC, 46 F.4th 953, 962 (9th Cir. 2022). The Court held that the trial court did not clearly err finding a secondary connection below. See Japan Telecom, Inc. v. Japan Telecom America Inc., 287 F.3d 866, 873 (9th Cir. 2002). The trial court properly considered other factors in its secondary connection analysis, such as the “substantial and continuous [commercial] use” of JSC’s product for over five years, and the distinctiveness of JSC’s products in buyer’s minds, as established by retailer testimony. See 15 U.S.C. § 1052(f). Considering the near identical nature of the “the products and marketing channels of the parties” the trial court did not err in finding consumer confusion. Fuddruckers, Inc. v. Doc’s B.R. Others, Inc., 826 F.2d 837, 846 (9th Cir. 1987). Affirmed.