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Sept. 2 — The case against Sears for allegedly infringing the trade dress of Weber grills will continue after the U.S. District Court for the Northern District of Illinois denied Sears's motion to dismiss Sept. 1.
Sears Holding Corp. argued that it was entitled to summary judgment because Weber-Stephen Products LLC's trade dress had not obtained secondary meaning, making it unprotectable. The court rejected this argument because there was evidence that the public associates Weber's grill designs with the company, and there was more damning evidence that Sears intentionally copied Weber's trade dress to play on the company's goodwill.
“Copying like this is strong evidence of secondary meaning because the only reason that Sears would have expected copying Weber to make consumers think of Weber is if, in fact, Sears believed that Weber's trade dress had acquired secondary meaning,” Judge Edmond E. Chang said. “This copying evidence, taken together with Weber's other evidence, is enough to warrant a trial.”
The court noted an e-mail from a Sears project manager indicating the company's copying of Weber's trade dress was purposeful. The e-mail said that Sears “developed a model to directly compete with Weber's” and “spec'd the features exactly the same, improved the materials and construction and created a grill that the fit, feel and finish will make the customer think of the market share leader, Weber, but at a lower price.”
The court also said that significant advertising and sales of Weber grills and evidence of actual customer confusion between Sears and Weber's grills indicated that the relevant public associated the trade dress with Weber.
Weber is represented by Raymond Pardo Niro Jr. of Niro McAndrews Dowell & Grossman LLC, Chicago. Sears is represented by James J. Lukas Jr. of Greenberg Traurig LLP, Chicago.
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