Intellectual Property Law

We hold, however, that a reasonable trier of fact could conclude that the marks are objectively similar. It could also be argued that, given the similarity of the marks, a reasonable observer of the two marks could understand the HOT RIGZ mark to be expressing the sense that the product sold under that mark is, essentially, a HOT WHEELS product. Therefore, the district court's entry of summary judgment in favor of Jada as to Mattel's copyright claim is reversed.

I then noted:

The part that is objectionable is this, ?a reasonable observer of the two marks could understand the HOT RIGZ mark to be expressing the sense that the product sold under that mark is, essentially, a HOT WHEELS product.? That?s a trademark analysis, not a copyright analysis. One can only hope that such confusion of two very different rights and infringement of them is limited to the facts of this particular case.

HT to the wild and crazy Marty Schwimmer, on February 21st, the court, per District Judge Brian Sandoval, released an amended opinion, that substitutes this paragraph:

We hold, however, that the district court did not conduct an objective test as to both ideas and expression as required under the extrinsic test outlined in Apple Computer. In addition, as to the intrinsic test, Mattel has raised a material issue of fact. A trier of fact could conclude that the logos are similar "from the standpoint of the ordinary reasonable observer." Therefore, the district court's entry of summary judgment in favor of Jada as to Mattel's claim is reversed.

Bravo Judge Sandoval for correcting things.