*4 KORMAN, District Judge:
Hеrman Miller, Inc. (“HM”) sells Eames chairs and Aeron chairs. On December 13, 2013, HM sent a cease-and- desist letter to Blumenthal Distributing, Inc., d/b/a Office Star Products (“OSP”), accusing OSP of selling “knockoff” chairs that look like HM’s Eames and Aeron chairs. The letter alleged infringement of HM’s rights in the EAMES and AERON trade dresses under the Lanham Act. Litigation ensued, culminating in a jury trial on HM’s claims for infringement of its registered claimed trade dresses under 15 U.S.C. § 1114, for infringement of its unregistered claimed trade dresses under 15 U.S.C. § 1125(a), and for dilution of all its claimed trade dresses under 15 U.S.C. § 1125(c).
As to the Eames chairs, HM won: The jury found that HM’s registered and unregistered claimed EAMES trade dresses were protectable, and that OSP willfully infringed and diluted them. HM was eventually awarded $3,378,966 *5 6 B LUMENTHAL D ISTRIB . V . H ERMAN M ILLER in infringement damages and $3,000,000 in dilution damаges, and OSP was enjoined from continuing its unlawful activities. As to the Aeron chair, HM lost: The jury found that HM’s registered and unregistered claimed AERON trade dresses were unprotectable because they were “functional.” OSP was thus not found liable for infringing or diluting those claimed trade dresses, and judgment was entered holding them unprotectable and holding invalid HM’s trademark registration for the Aeron chair, U.S. Trademark Registration No. 2,754,826. Both parties timely appealed.
For the reasons below and in the memorandum disposition concurrently filed today, we (1) affirm the judgment in favor of HM on its causes of action for the infringement of its registered and unregistered EAMES trade dresses; (2) reverse the judgment in favor of HM on its cause of action for dilution; and (3) reverse the judgment in favor of OSP regarding the Aeron chair and remand for a new trial. I. B ACKGROUND
HM introduced the first Thin Pad Eames chair in 1958, and has sold hundreds of thousands of them in the United States, along with a related line of Soft Pad Eames chairs. The Aeron chairs were introduced in 1994 and were even more successful; by the time of trial, HM had sold 6.5 million of them in the United States. The Eames and Aeron chairs come in a range of models, and versions of each have been exhibited in American art museums and made repeated appearances in American pop culture.
HM’s unregistered claimed EAMES trade dresses consist of the overall appearances of its Thin Pad and Soft Pad Eames chairs, exсluding the chairs’ colors and all components beneath the chairs’ seats. HM’s registered claimed EAMES trade dress is the same, except that it excludes the chairs’ upholstery. The nuances of the claimed trade dresses’ scopes, and the difference between the registered and unregistered ones, are not material to the parties’ dispute, and thus, consistent with the parties’ briefs, we discuss all of the claimed EAMES trade dresses collectively as the Eames chairs’ overall appearances. Examples of the Eames chairs appear below:
HM’s unregistered claimed AERON trade dress was the overall appearance of the Aeron chair with an oval-shaрed lumbar support, excluding the portion of the chair beneath the seat and the chair’s color. HM’s registered claimed AERON trade dress was the same, except that it also included the control box under the seat. As with the Eames chairs, the nuances of the claimed AERON trade dresses’ scopes, and the difference between the registered and unregistered one, are not material to the parties’ dispute, so we discuss all of the claimed AERON trade dresses collectively as the Aeron chair’s overall appearance. The Aeron chair at issue appears below: II. F UNCTIONALITY
A. Summary of the Law on Functionality
In addition to using distinctive names, logos, packages,
*7
or labels to identify its products, a seller can also design the
products themselves to have distinctive, source-identifying
appearances. Such appearances can receive protection under
trademark law against infringement and dilution.
See Wal-
Mart Stores, Inc. v. Samara Bros., Inc.
,
However, for a product’s design to be protected under
trademark law, the design must be nonfunctional.
See Secalt
S.A. v. Wuxi Shenxi Constr. Mach. Co.
,
The nonfunctionality requirement stoрs individual
sellers from permanently monopolizing “functional” designs
that they have not patented, or for which patents have
expired.
See Qualitex
, 514 U.S. at 164–65. Allowing
competitors to copy such designs has “salutary effects” for
consumers.
TrafFix Devices, Inc. v. Mktg. Displays, Inc.
,
But what makes a claimed trade dress “functional”? In this context, “functionality” is a legal term of art, undefined by statute, around which a complicated legal doctrine has developed.
1. Utilitarian and Aesthetic Functionality
In
TrafFix Devices, Inc. v. Marketing Displays, Inc.
, the
Supreme Court split functionality into two types, each with
its own legal test.
A claimed trade dress has utilitarian functionality if it is
essential to the use or purpose of a product or affects its cost
or quality.
See Millennium
, 817 F.3d at 1127–28 (citing
Inwood Labs., Inc. v. Ives Labs., Inc.
,
A claimed trade dress has aesthetic functionality if it
serves “an aesthetic purpose wholly independent of any
source identifying function,” such that the trade dress’s
protection under trademark law “would impose a significant
non-reputation-related competitive disadvantage” on its
owner’s competitors.
Id.
at 1129, 1131 (quoting
Au-
Tomotive Gold
,
2. Functionality of Overall Appearances
A plaintiff may define its claimed trade dress as the
“overall appearance” of its product.
[1]
In principle, such
claimed trade dressеs are subject to the tests for utilitarian
and aesthetic functionality, just like any other claimed trade
dresses. However, when the claimed trade dress is an
“overall appearance,” these tests must be applied with extra
care to prevent “semantic trickery” from obscuring the
functionality of the design the plaintiff seeks to monopolize.
See Secalt
,
functional features is itself functional, referring to that layout of features as the “overall appearance” of a product does not render it nonfunctional.
We have consistently held that, as a matter of law, a
product’s “overall appearance” is functional, and thus
unprotectable, where the whole product is “nothing other
than the assemblage of functional parts,” and “even the
arrangement and combination” of those рarts is designed to
make the product more functional.
Leatherman
, 199 F.3d at
1013 (9th Cir. 1999);
see also Tie Tech, Inc. v. Kinedyne
Corp.
,
Consistent with that rule, we have also held that the
proper standard for whether a claimed trade dress consisting
of an “overall appearance” is functional is whether
“protecting the trade dress threatens to eliminate a
substantial swath of competitive alternatives in the relevant
market.”
Clicks Billiards, Inc. v. Sixshooters, Inc.
, 251 F.3d
1252, 1261 n.5 (9th Cir. 2001) (quoting
Taco Cabana Int’l,
Inc. v. Two Pesos, Inc.
,
HM argues that, because the examination must be
holistic, the functionality of individual features is irrelevant.
But that “cannot bе the case.”
Tie Tech
,
B. The Eames Chairs
Against this legal backdrop, we now address the specific
functionality-related issues on appeal, beginning with the
Eames chairs. OSP argues that HM’s claimed EAMES trade
dresses are functional (and thus unprotectable) аs a matter of
law. We review the issue de novo, determining “whether the
evidence, construed in the light most favorable to the
nonmoving party, permits only one reasonable conclusion,
*11
and that conclusion is contrary to that of the jury.”
Estate of
Diaz v. City of Anaheim
,
OSP argues that the Eames chairs’ overall appearances should be found functional as a matter of law because: (i) the undisputed fact that the chairs have some utilitarian functionality proves their overall appearances functional; and (ii) the utilitarian functionality of the chairs’ various features proves their overall appearances functional under the Disc Golf factors. Both arguments fail.
OSP’s first argument—that
the chairs’ overall
appearances are functional “because they
include
, in whole
or
in part
, elements that are functional” (emphasis added)
—
is a nonstarter. As we have long held, a product’s overall
appearance is necessarily functional if
everything
about it is
functional, not merely if
anything
about it is functional.
See
Clicks Billiards
,
OSP’s second argument is that the Eames chairs’ overall appearances are functional as a matter of law because they have utilitarian functionality under the Disc Golf factors. Significantly, OSP argued in its opening brief that “aesthetic functionality . . . is not an issue in this case,” and “only” the test for utilitarian functionality “is relevant.” Thus, we limit our analysis to the consideration of utilitarian functionality and hold that the utilitarian functionality of the Eames chairs’ various features does not make the chairs’ overall appearances functional as a matter of law.
The Eames chairs are nothing like the thoroughly utilitarian products whose overall appearances were held functional as a matter of law in Leatherman (a pocket-knife- like tool), Tie Tech (a tool used in emergencies to quickly cut people out of wheelchairs), and Secalt (a piece of industrial machinery called a “traction hoist”). In each of
B LUMENTHAL D ISTRIB . V . H ERMAN M ILLER 15
those cases, the product’s “form . . . follow[ed] its
[utilitarian] function[s],”
Secalt
,
The jury was shown images of the Eames chairs, from which it could have reasonably inferred that the chairs were designed largely to be distinctive and/or beautiful, even at some expense to their “utilitarian advantage,” Disc Golf , 158 F.3d at 1006. For example, the jury could have reasonably conсluded that the metal trapezoidal design of the Eames chairs’ armrests was motivated by design considerations, at the expense of the comfort that a softer surface could have provided.
HM’s expert furniture historian testified that the Eames chairs’ designers, Charles and Ray Eames, were “always working to find the exact right look of something” and “were as much sculptors as they were designers.” He also testified that the “aesthetics were one of the most important considerations” in the Thin Pad Eames chairs’ design and that the Soft Pad Eames chairs were “iconic pieces” whose “visual or aesthetic impact” was “significant.” A program manager for HM testified that he was not aware of any utilitarian purpose for several features of the Eames chairs, including the specific trapezoidal shape of the armrests, the one-piece construction of the seat and the back, and the specific horizontal stitching of the Thin Pad upholstery. HM’s industrial design expert also testified that those three features (among others) lacked utilitarian function and that their purposes were aesthetic. He also testified that the “overall design” of the Eames chairs is “distinctive and is not functional.”
A reasonable jury could have concluded that the remaining Disc Golf factors also showed utilitarian *13 functionality. HM introduced testimony suggesting that a variety of alternative designs could have achieved the Eames design’s functional advantages, so competitors would not be unreasonably limited in their chair design options if the Eames trade dress were protected. HM also introduced advertising materials that emphasized the Eames chairs’ distinctive appearances through large, artistic photographs and statements touting their appearances as “unmistakable,” “bear[ing] the distinctive stamp of Charles and Ray Eames,” and being “totally different” from other chairs. And HM introduced some testimony suggesting that at least some of the manufacturing techniques it employed required specialized technical equipment.
OSP’s rebuttal to all of this evidence did not compel a different conclusion. For example, OSP attempts to show that the armrests’ trapezoidal shape has utilitarian functionality because it enables the “armrests to be attached to the [rest of the chair] at three points” rather than two points, but cites no evidence that the extra point of attachment has any utilitarian benefit. Similarly, OSP argues that the armrests’ rounded corners have utilitarian functionality because they “provide greater safety as compared to sharp corners,” but cites no evidence that the roundness of the corners was ever intended, advertised, or perceived as a safety feature. Thus, we reject OSP’s argument that the utilitarian functionality of the Eames chairs’ component parts renders their overall appearances functional as a matter of law.
C. The Aeron Chair
In a cross-appeal, HM challenges the judgment that its claimed AERON trade dresses were functional and thus unprotectable. HM argues that there must be a new trial because Jury Instruction 25 (the “Functionality Instruction”) used an erroneously broad definition of functionality. “We review a district court’s formulation of civil jury instructions for abuse of discretion, but we review de novo whether an instruction states the law correctly.” Peralta v. Dillard , 744 F.3d 1076, 1082 (9th Cir. 2014) (en banc) (citations omitted).
HM’s challenge focuses on the following excerpt from the Functionality Instruction:
A product feature . . . is non-functional if its shape or form makes no contribution to the *14 product’s function or operation. If the feature is part of the actual benefit that consumers wish to purchase when they buy the product, the feature is functional. However, if the feature serves no purpose other than as an assurance that a particular entity made, sponsored or endorsed the product, it is non- functional.
We agree with HM that this excerpt misstates the law. It is
not true that being “part of the actual benefit that consumers
wish to purchase when they buy the product” is proof that a
feature is functional. Indeed, we have stated that “the mere
fact that [a] mark is the ‘benefit that the consumer wishes to
purchase’ will
not
” suffice to establish its functionality.
Au-
Tomotive Gold
,
“An error in instructing the jury in a civil case requires reversal unless the error is more probably than not harmless.” Clem v. Lomeli , 566 F.3d 1177, 1182 (9th Cir. 2009) (citation omitted). Because such errors are presumed harmful, the “burden shifts to the [prevailing party] to demonstrate that it is more probable than not that the jury would have reached the same verdict had it been properly instructed.” Id. (citation omitted). OSP did not address the issue of harmfulness in its answering brief, and thus did not overcome the presumption of harmfulness. See id. Consequently, the error in the Functionality Instruction requires reversal and remand for a new trial on HM’s Aeron- related claims. [2]
*15 [2] Without commenting on the merits of the issue, we vacate the district court’s ruling that the unrеgistered claimed AERON trade dress possesses secondary meaning as a matter of law, so that all of the issues
We recognize that the district court appears to have
derived the Functionality Instruction from Ninth Circuit
Model Civil Jury Instruction 15.12. But because that
instruction does not accurately track our functionality
caselaw,
see Millennium
,
III. Fame
We now turn our focus to HM’s cause of action for dilution of its claimed EAMES trade dresses. To prevail on dilution, HM was required to prove that those claimed trade dresses were “famous” before OSP began selling its accused chairs. See 15 U.S.C. § 1125(c)(1). OSP challenges the district court’s denial of its Rule 50(b) motion, in which OSP argued that the evidence of the claimed EAMES trade dresses’ fame was legally insufficient.
From 1996 to 2006, the standard for determining fame
was based on the Federal Trademark Dilution Act of 1995
(“FTDA of 1995”), an amendment to the Lanham Act that
set out a non-exhaustive list of eight factors that courts “may
consider.”
See
Pub. L. No. 104-98, § 3(a), 109 Stat. 985
(1996). We interpreted that statute to recognize two kinds of
fame: fame within “only a limited geographic area or a
specialized market segment” (or “niche fame”) and “fame
among the general consuming public.”
Thane Int’l, Inc. v.
Trek Bicycle Corp.
,
20 B LUMENTHAL D ISTRIB . V . H ERMAN M ILLER The FTDA of 1995 was replaced by the Trademark Dilution Revision Act of 2006 (“TDRA of 2006”), which eliminated the concept of niche famе, defining fame as being “widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner,” 15 U.S.C. § 1125(c)(2)(A) (emphasis added), and omitting from its list of suggested factors the two from the FTDA of 1995 that related to niche markets. [3] Thus, niche fame can no longer make a trademark eligible for protection against dilution; instead, the trademark must be “widely recognized by the general consuming public of the United States.” Id.
While the FTDA of 1995 was still in effect, we decided
Thane
, in which we applied a very high standard for
establishing fame among the general consuming public. The
issue in that case was whether a stationary exercise machine
producer’s “OrbiTrek” mark infringed the Trek Bicycle
Corporation’s “TREK” mark. We held that the requisite
level of fame was that of “a household name.”
Thane
,
305 F.3d at 911. The mark must be in a “select class” of
those that are “truly prominent and renowned” and “part of
the collective national consciousness.”
Id.
at 911–12 (first
and second quoting
Avery Dennison Corp. v. Sumpton
,
on advertising, including in mainstream publications such as Rolling Stone Magazine , Playboy , and Men’s Journal ; had around 4.5 million visitors to its website per year; made over 1,000 different products with the TREK mark that were sold by over 1,600 independent dealers in 2,000 locations across the nation; and sponsored superstar Lance Armstrong, who used TREK bicycles to win multiple Tour de France races, and appeared with a TREK bicycle on the front page of large circulation newspapers, at a press event with a sitting *17 President, and even on a Wheaties box. Id. at 899, 912.
In holding that Trek Bicycle Corporation failed to make the necessary “showing of the requisite level of fame” for its mark, id. at 911, we reasoned that “incidental media coverage,” such as that connected to Lance Armstrong, did not “by itself constitute evidence” that the mark was famous, because “[m]any products receive broad incidental media coverage.” Id. at 912. We also reasoned that “[a]dvertising to a mass audience is not the same as achieving fame with a mass audience and, by themselves, such advertisements prove only that Trek desires widespread fame, not that it has achieved it.” Id. at 912 n.13. “On the other hand,” we explained, “surveys showing that a large percentage of the general public recognizes the brand, press accounts about the popularity of the brand, or pop-culture references involving the brand would provide evidence of fame.” Id. at 912.
Although
Thane
interpreted the FTDA of 1995, we do
not interpret the TDRA of 2006 to have lowered the standard
for whethеr a mark “has achieved fame among the general
consuming public.”
Id.
at 911;
see Coach Servs., Inc. v.
Triumph Learning LLC
,
Taken in the light most favorable to HM, the evidence establishes only that: HM spent, on average, $550,000 per year on advertising the Eames chairs from 2004 through 2015 (and under $400,000 per year from 2004 through 2009); the Eames chairs appeared in obscure publications such as Contract , Metropolis , and an “industry publication” called Monday Morning Quarterback ; at the time of trial in 2016, HM had, at the very most, around 875,000 unique followers оn Facebook, Twitter, and Instagram combined; most of the Eames chairs are sold through a distribution channel consisting of only around 45 independently owned dealers with 130 locations across the country; and the Eames chairs were “very heavily” featured in the TV show Mad Men , have appeared in other TV shows and movies, and have been exhibited at several American museums, including the Museum of Modern Art and the Henry Ford Museum. Because the evidence of the claimed EAMES trade dresses’ *18 fame is plainly weaker than the evidence that Thane held legally insufficient, we must hold that, as a matter of law, those trade dresses were not famous.
HM’s efforts to avoid
Thane
’s demanding standard fail.
In
Horphag Research Ltd. v. Garcia
, a case on which HM
relies to suggest a more modest standard, the appellant did
not raise the issue of whether any mark was sufficiеntly
famous, so we neither considered nor decided that issue.
See
Because there was legally insufficient evidence to find that the claimed EAMES trade dresses were famous under 15 U.S.C. § 1125(c)(2)(A), the judgment against OSP for their dilution must be reversed.
IV. C ONCLUSION
Based on this opinion and the simultaneously filed memorandum disposition, we affirm the judgment in favor of HM on its causes of action for the infringement of its registered and unregistered claimed EAMES trade dresses. We reverse the judgment in favor of HM on its cause of action for dilution.
We reverse the portion of the judgment regarding the Aeron chair in its entirety, and remand for a new trial.
AFFIRMED in part, REVERSED in part and REMANDED.
[4] Although focusing on some practical differences between trade names and trade dresses, the dissent correctly recognizes that a dilution claim requires that the general consuming public recognize either type of mark “as a designation of source of the goods or services of the mark’s owner.” 15 U.S.C. § 1125(c)(2)(A). Even assuming that the shape of the Eames chair is more recognizable than the name “Trek,” thеre nonetheless was no basis from which the jury could reasonably infer that the general consuming public would link all Eames-shaped chairs to a single source of goods.
24 B LUMENTHAL D ISTRIB . V . H ERMAN M ILLER FRIEDLAND, Circuit Judge, concurring in part and dissenting in part:
Although I join most of the majority’s opinion, I disagree with the conclusion that there was insufficient evidence to sustain the jury’s verdict in favor of Herman Miller (“HM”) on its claim for dilution of its EAMES trade dresses. I therefore dissent as to Part III.
A jury’s verdict must be sustained on a renewed motion
for judgment as a matter of law unless “the evidence,
construed in the light most favorable to the nonmoving party,
permits only one reasonable conclusion, and that conclusion
is contrary to the jury’s verdict.”
Harper v. City of Los
Angeles
, 533 F.3d 1010, 1021 (9th Cir. 2008) (quoting
Pavao v. Pagay
,
For HM to prevail on its dilution claim, the jury was
required to find that the EAMES trade dresses were
sufficiently “famous”—that is, that they were “widely
recognized by the general consuming public of the United
States as a designation of source of the goods or services” of
the trade dress owner. 15 U.S.C. § 1125(c)(2)(A). A trade
dress is famous when the general consuming public
recognizes the trade dress as associated with a singular
owner; as is true throughout trademark law, whether the
general consuming public could
name
that owner is
irrelevant.
See Maljack Prods., Inc. v. GoodTimes Home
Video Corp.
,
At trial, the jury heard expert testimony that Eames Thin Pad and Soft Pad chairs were “iconic” pieces that “had significant impact on the design world.” HM experts opined that the Eames chairs were “ubiquitous” in conference rooms and were often used as seating in lobbies or in other public spaces within office environments. Expert testimony further established that Eames chairs were depicted in “countless TV shows,” including the long-running series “Mad Men,” and in blockbuster mоvies. And the chairs were featured in “any museum in the United States” with “a collection of design.”
Construed in the light most favorable to HM, this evidence was sufficient to support the jury’s verdict. The jury was entitled to deem HM’s experts credible and to infer from their testimony that the general consuming public had become familiar with the Eames chairs through encounters in business environments, pop culture, and museums. And because HM presented evidence that the Eames chairs had a distinctive design, the jury was entitled to find that the consuming public recognized trade dresses central to that design as a signature of chairs made by a leading furniture manufacturer, even if they could not specifically name HM as that manufacturer. Although this was not the only finding the jury could have made based on the evidence, it was a reasonable one.
The majority’s contrary conclusion stems largely from a side-by-side comparison with the facts of Thane International, Inc. v. Trek Bicycle Corp. , 305 F.3d 894 (9th Cir. 2002), in which we held that the evidence at summary judgment was insufficient to establish that the Trek Bicycle Corporation’s “TREK” mark was famous enough to support a claim for dilution. Id. at 910–12. We noted that the “closest” Trek came to demonstrating recognition by “a large portion of the general consuming public” was to produce evidence depicting Lance Armstrong with a Trek bicycle on newspaper front pages and Wheaties boxes. Id. at 912. In so observing, we relatedly indicated that the other еvidence in the record—such as the company’s $3 to $5 million in advertising expenditures, 4.5 million website visitors, and robust commercial sales—was insufficient to support a finding of fame. See id. at 899, 912.
There is stronger evidence here than there was in Thane of actual consumer recognition: the Eames chairs were “ubiquitous” in office environments and depicted in “countless” TV shows and movies. And the Eames chairs had an “iconic,” visually striking design deemed worthy of museum displays, whereas in Thane “TREK” was a non- distinctive four-letter term with multiple meanings. See id. at 912 n.14 (explaining that “trek” is a “common English language word” used to refer to concepts and products other than Trek bicycles). Yet the majority nonetheless seems to require HM and its Eames chairs to have greater advertising expenditures, a more signifiсant web presence, or a higher volume of commercial sales than Trek bicycles for there to be sufficient evidence supporting the EAMES trade dresses’ fame. See Maj. Op. at 22.
In my view, the majority’s analysis is misguided. It is
not surprising that we concluded in
Thane
that Trek’s
evidence was insufficient to prove the fame of the “TREK”
mark. Given that the “TREK” mark was a non-distinctive
word that received only some “incidental media coverage,”
Thane
reasonably suggested that consumers would not have
recognized the mark absent more sales, more advertising, or
more Internet engagement that familiarized the general
public with the mark.
See Thane
,
Moreover, while the media portrayals of “TREK” did little to raise the mark’s profile, HM presented evidence that the general consuming public became familiar with the EAMES trade dresses through the chairs’ being widely depicted in pop culture, displayed in museums, and featured in business environments. And HM’s evidence suggested that, far from being “incidental,” see id. , the design aspects of the Eames chairs—including their trade dresses—were the very reason the chairs were popular in business environments and displayed in museums. From this evidence, the jury could have concluded that many *22 consumers who saw the chairs featured in such settings took note of them and their distinctive designs. By contrast, in Thane , the central focus of the Wheaties boxes and the newspaper stories was Lance Armstrong—not the mark on his bike, which consumers could easily have overlooked.
Accordingly, the jury could have inferrеd that a higher level of advertising or sales exposure was not required to render the Eames chairs’ design widely recognizable. Even if too few Eames chairs were sold for them to be present in most households or offices, and even if there was too little advertising for it to reach the average consumer, HM’s evidence nevertheless allowed the jury to conclude that many individual chairs reached a wide audience and were recognized on account of their distinctive design. [1]
In sum, HM’s failure to satisfy the metrics the majority
identifies did not preclude the jury from finding that its trade
dresses were famous. To the contrary, as
Thane
itself
recognized, evidence of a trade dress’s cultural significance
mаy provide evidence of fame.
Id.
at 912. In my view, HM
introduced sufficient evidence of such significance to render
the question of fame one for the jury. This is not one of the
“rare cases” in which we should disturb the jury’s
conclusion.
See Barnard
,
[1]
In overturning the jury’s fame finding, the majority also appears to
rely on the fact that the number of people who follow HM on social
media is lower than the number of people who visited Trek Bicycle’s
website.
See
Maj. Op. at 21, 22–23. But there was no need for HM to
present evidence of a high level of social media engagement with HM
itself, given that the question whether the EAMES trade dresses were
widely recognized as a “designation of source,”
see
15 U.S.C.
§ 1125(c)(2)(A), does not depend on consumers’ actually being able to
name HM as the source of those trade dresses,
see Maljack Prods.
,