Intellectual Property Law

No Summary Judgment Dismissal in Pull-Tab Trade Dress Case

By Michael Atkins

Plaintiff’s (left) and defendant’s pull-tab designs

Plaintiff Bonanza Press, Inc., and defendant Arrow International, Inc., sell pull-tab tickets used in games of chance. A pull-tab ticket has at least one perforated section that can be removed or lifted to reveal a symbol indicating whether the ticketholder is a winner.

Bonanza has a federal registration for its design, which it describes as “a configuration of a circular shaped gaming ticket having a concentric circular pull-away portion.” Arrow’s pull-tabs are either octagonal with a circular pull-away portion or octagonal with an octagonal pull-away portion.

Bonanza sued Arrow in the Western District for trade dress infringement. Arrow moved for summary judgment on the ground that its octagonal pull-tabs are not likely to be confused with Bonanza’s circular pull-tabs.

On May 27, Western District Judge Richard Jones found that Bonanza’s mark is weak, there was no evidence of actual confusion, and there was no evidence that Arrow developed its design with malicious intent. However, the court also found that the designs are similar at least to some degree and purchasers do not exercise much care when buying pull-tabs. Together, the court found the Sleekcraft factors did not lead to one conclusions and, therefore, summary judgment dismissal was not appropriate.

The court also denied Arrow’s motion for summary judgment on Bonanza’s unfair competition claim.

The court granted Arrow’s motion on Bonanza’s Consumer Protection Act Claim because Arrow has not made any sales in Washington. “Potential sales do not directly or indirectly affect Washingtonians,” the court found. “Thus, because there is no evidence that Arrow’s practices affect Washington’s trade or commerce, its WCPA claim fails as a matter of law.” 

The case cite is Bonanza Press, Inc. v. Arrow International, Inc., No. 2010 WL 2196112, No. 08-1624 (W.D. Wash. May 27, 2010) (Jones, J.).

Full post as published by Seattle Trademark Lawyer on June 08, 2010 (boomark / email).