Hearthware, Inc. v. E. Mishan & Sons

Similarities in infomercials do not constitute copyright infringement when the similarities are standard components of infomercials.

Opinion (Conlon): Hearthware produces a halogen oven under the trademark “NuWave.” Hearthware made two infomercials advertising its halogen ovens. In 2010, E. Mishan & Sons (Emson) began selling a halogen oven under the trademark “Super Wave.” Emson hired a production company to produce an infomercial for the Super Wave. While no footage from the NuWave infomercial was used in the Super Wave infomercial, there were many similarities, such as, time-lapse photography of the cooking process, use of many of the same foods, upbeat and enthusiastic hosts, and suggestions that their products may be used in an RV, dorm, or boat. The Super Wave has “tri-cooking technology,” while the NuWave has “triple-combo cooking power.” The court found that these similarities fall under the scènes à faire doctrine, preventing a finding of infringement in elements that fail to distinguish works within a certain class because they are standard or unavoidable. The court GRANTED summary judgment to Emson.