12
Feb/12

Nude Descending A Window Washing Platform: 9th Circuit Trade Dress Decision


Plaintiff claims trade dress in its traction hoist (used for things like moving window washing platforms). The trade dress claim was in:

1) a cube-shaped gear box with horizontal fins;

2) a cylindrical motor mounted in an off-set position on the cube and partially overhanging the edge of the cube:

3) the cylindrical motor including vertical fins on a lower portion and a generally smooth sheet metal upper cover having a control descent lever and top cap positioned over the upper end and supported by rectangular legs;

4) a rectangular control box cantilevered to the motor by a square shaped member, the control box posi- tioned over the cube, the control box including controls thereon; and
5) a rectangular frame.

Plaintiff claims that the overall exterior appearance of the hoist is nonfunctional because the design demonstrates a ‘cubist’ look and feel. You don’t think I’m serious so look at page 1277 of the decision.

Depicted above is a cubist nude descending a window washing platform operated by plaintiff’s hoist.

The Ninth Circuit affirmed the lower court’s dismissal, noting that there was no evidence that anything about the external appearance exists for any nonfunctional purpose. It also found that this was an exceptional case, and upheld an award of attorney’s fees (but remanded for the exact amount of fees).

Decision Secalt Tirak Trade Dress Shape