I spoke about this decision at the John Marshall Law Conference last week. I think the bit about comparing defendant’s product to plaintiff’s mark, on page 24, seems like a mistake. I think in a non-trade dress case the trier of facts compares the marks to each other, and considers the relatedness of the goods/services. I think on a trade case case, the trier of facts would compare the non-functional elements of defendant’s design or configuration, to the claimed trade dress (and would also consider the relatedness of the goods/services).
Also, the last sentence of the decision mentioning numerous commercial alternatives, is a reminder that there is a split among the circuits on whether this factor is relevant to the functionality analysis.
Some other bits will require further thought.
Read the dissent.