Intellectual Property News and Reports

The panel affirmed the district court’s dismissal of a claim of trade dress infringement, reversed the district court’s dismissal of a claim of infringement of copyright in kinetic and manipulable sculptures, and remanded.

As to the copyright claim, the panel held that, at the pleading stage, the plaintiff adequately alleged valid copyrights in seven kinetic and manipulable sculptures. Comparing the plaintiff’s works to dance, movies, and music, the panel held that the fact that the works moved into various poses did not, by itself, support the conclusion that they were not “fixed” in a tangible medium for copyright purposes. The panel also held that, under the “extrinsic test,” the plaintiff validly alleged copying of its protected works because it plausibly alleged that the creative choices it made in selecting and arranging elements of the works were substantially similar to the choices the defendants made in creating their own sculptures.

As to the claim of trade dress infringement under the Lanham Act, the panel affirmed the district court’s dismissal for failure to give adequate notice of the asserted trade dress.

Download TANGLE INC. V. ARITZIA INC.