Common Pizza Parlor Design Is Not Distinctive

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Design elements such as an expansive menu, granite countertops, neon signs, steel shelves, and ceramic tiled floors and walls are not uncommon in the pizza parlor business, and thus they do not constitute inherently distinctive trade dress, the U.S. District Court for the Eastern District of Michigan ruled Jan. 25 (Happy's Pizza Franchise L.L.C. v. Papa's Pizza Inc., E.D. Mich., No. 2:10-cv-15174-MOB-MKM, 1/25/13).

Denying the plaintiff summary judgment on its trade dress infringement claim, the court said that the design elements used in the restaurant were generic. After noting that the decision to use the particular generic design elements may have been arbitrary, the court said that that decision alone did not make the trade dress distinctive.

“There is an important distinction between arbitrarily selecting design elements that result in a unique and distinctive trade dress and arbitrarily selecting elements that result in nothing more than a generic design,” the court said. “The former demonstrates a unique theme in order to distinguish the end product; the latter results in general overhead cost of doing business.”

The court also noted that there was no reliable evidence of actual customer confusion between the plaintiff's pizza parlor and the defendant's competing pizza parlor. Accordingly, the court declined to grant the plaintiff summary judgment on its Lanham Act trade dress infringement claim.

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