Dippin' Dots, Inc. v. Frosty Bites Distribution, LLC - 369 F.3d 1197 (11th Cir. 2004)

Rule:

Section 43(a) (15 U.S.C.S. § 1125(a)) of the Lanham Act creates a federal cause of action for trade dress infringement. The term "trade dress" refers to the appearance of a product when that appearance is used to identify the producer. Trade dress involves the total image of a product and may include features such as size, shape, color, texture, graphics, or even particular sales techniques. In order to prevail on a claim for trade dress infringement under § 43(a), the plaintiff must prove that: (1) the product design of the two products is confusingly similar; (2) the features of the product design are primarily non-functional; and (3) the product design is inherently distinctive or has acquired secondary meaning. 15 U.S.C.S. § 1125(a)(3). The person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional. As all three elements are necessary for a finding of trade dress infringement, any one could be characterized as threshold.

Facts:

Plaintiff-Appellant Dippin' Dots, Inc. ("DDI") marketed and sold a brightly-colored flash-frozen ice cream product that consisted of free flowing small spheres or beads of ice cream. DDI had a distinctive logo made up of oval of blue, yellow, and pink spheres surrounding the product name in blue letters. Defendant-Appellee Frosty Bites Distribution, LLC ("FBD") made and sold a competing brightly-colored flash-frozen ice cream product that consisted of mostly small popcorn-shaped ice cream bites. FBD had a distinctive logo that consisted of an ice-like background upon which the words "Frosty Bites" were written in blue letters shadowed in pink. The "o" in the word "Frosty" was the torso of a cartoon caricature of a portly penguin holding a cup of ice cream. 

Issue:

Was DDI’s product design subject to trade dress protection?

Answer:

No.

Conclusion:

The appellate court found that in DDI’s action for trade dress infringement under the § 43(a) (15 U.S.C.S. § 1125(a)) of the Lanham Act, the totality of DDI’s ice cream product design was functional because any flash-frozen ice cream product would inherently have many of the same features as the corporation's product. Therefore, DDI’s product design was not subject to trade dress protection.