Intellectual Property Law

Nickelodeon's "Visual System" Functional, Not Protectable as Trade Dress

By Michael Atkins

Plaintiff and counterclaim defendant The Jumpitz Corp. is a San Diego-based performance group that performs live song and dance for preschool-aged children. It also markets itself through its Web site, www.jumpitz.com. It first used the JUMPITZ mark in December 2007.

Defendant and counterclaim plaintiff Viacom International, Inc., owns the MTV and Nickelodeon television networks. On or about May 1, 2009, MTV began marketing a live-action children’s television program called “The JumpArounds” (a name it later changed to “The Fresh Beat Band”).

On May 15, 2009, Jumpitz filed suit in the Southern District of California for trademark and trade dress infringement. Viacom counterclaimed for trade dress infringement.

In particular, Viacom alleged that Jumpitz infringed Viacom’s trade dress by infringing Nickelodeon’s “visual system,” which Viacom asserted is made up a particular color palette (“distinctive shades of orange, green, and cyan blue”) and design (“‘soft’ and ‘whimsical’ geometric shapes as mortise or framing devices”). Viacom defined a “visual system” as “the visual expression of a brand, including through color, imagery, and typography, so as to promote a consistent, coherent, and distinctive brand image.”

Jumpitz moved for summary judgment.

On Aug. 13, the court found Viacom’s “visual system” was functional and, therefore, was not protectable as trade dress. 

Its discussion is interesting.

The court noted Nickelodeon’s creative director, Richard Hicks, admitted that “‘A significant portion of Nickelodeon’s audiences is comprised of young children, many of whom are not yet of reading age and therefore identify brands not by words but instead by visual elements, including colors and shapes.’ Mr. Hicks also states, ‘Colors are among the first things children are able to distinguish ….’ This evidence demonstrates that the use of colors is important to Viacom because of the limited cognitive abilities of children, the intended audience, not to distinguish its brand from other competitors in the market. Furthermore, there is no evidence in the record to demonstrate that Viacom’s use of ‘simple yet whimsical shapes’ is Viacom’s attempt at distinguishing the Nickelodeon brand from other competitors. Rather, it appears to be Viacom’s attempt to appeal to children, who are inherently less adept at cognitive functioning. Thus, the Court is not convinced that Viacom has adequately carried its burden of demonstrating that its ‘visual system’ is non-functional.”

The court added: “[T]he Court would be remiss if it did not express its concerns over affording trade dress protection to Nickelodeon’s broadly defined ‘visual system.’ Children present a unique audience and companies attempting to reach children must figure out how to reach children in light of their limited cognitive abilities. The use of bright, fun colors and whimsical, playful shapes are not quintessential Nickelodeon; they are tools that companies have used for years to reach children. Allowing Viacom to assert a protectable interest in its broadly defined ‘visual system’ would stifle competitors in the filed of children’s entertainment in a way not contemplated by the Lanham Act.”

The case cite is The Jumpitz Corp. v. Viacom Int’l, Inc., 2010 WL 3238953, No. 09-1063 (S.D. Calif. Aug. 13, 2010).

Full post as published by Seattle Trademark Lawyer on August 30, 2010 (boomark / email).