Recently, the U.S. Court of Appeals for the Sixth Circuit issued a precedential opinion in Bliss Collection, LLC v. Latham Co., LLC, Nos. 21-5723, 22-5361 (Sept. 21, 2023), affirming in part and reversing in part a district court judgment addressing trade dress and trademark infringement.
Bliss sued Latham asserting various claims, including claims of trademark and trade dress infringement. Latham and Bliss were competitors in the sale of children’s clothing. Bliss accused Latham’s “Little English” and “Le” logos of infringing Bliss’s trademark rights in its own logos. Bliss also accused Latham of trade dress infringement, alleging that Bliss’s “bliss Blue” color and seven different items of clothing had become famous and recognizable as symbols of unique and high-quality garments and had been copied by Latham. Latham moved to dismiss the case. The district court ultimately granted the motion but declined to award attorneys’ fees to Latham on the trademark and trade dress claims. Both parties appealed.
The Sixth Circuit reversed the dismissal of Bliss’s trademark claims holding that the amended complaint properly alleged infringement of three registered marks with a lowercase “b” and one unregistered mark with a lowercase “b” logo in a blue pantone with the words “bella bliss.” The Court applied the same analysis to the registered and unregistered marks because Bliss adequately alleged continuous use in the unregistered mark. Applying the eight Frisch factors to assess likelihood of confusion, the Court concluded that, accepting the well pleaded allegations of Bliss’s amended complaint as true, five of the factors weighed Bliss’s favor, two were neutral, and only one weighed in favor of Latham.
As for the trade dress issues, the Court affirmed the district court’s order dismissing claims for alleged infringement of Bliss’s bliss Blue color and the seven asserted clothing designs. Regarding any alleged trade dress rights in bliss Blue, the Court concluded that the amended complaint lacked sufficient allegations of acquired secondary meaning to show acquired distinctiveness. As for the seven clothing items, the Court determined that Bliss failed to allege any facts to show that its asserted trade dress in the items was nonfunctional under the traditional test focused on utility or under the aesthetic test. The Court also affirmed the district court’s decision not to award attorneys’ fees.
Dissenting in part, Judge Larsen explained she would have affirmed the district court’s dismissal of the trademark infringement claims due to the marks being clearly distinguishable.