Scentsy

MEMORANDUM

Scentsy, Inc. appeals from the district court’s grant of summary judgment on Scentsy’s trade dress infringement and copyright infringement claims and award of attorneys’ fees to Harmony Brands, LLC. We have jurisdiction under 28 U.S.C. § 1291 . We affirm in part, reverse in part, and remand this matter to the district court for further proceedings.

I

We review the grant of summary judgment de novo. Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1131 (9th Cir.2003).

The district court’s conclusion that Scentsy’s designs were functional was not error; we agree with the district court that a reasonable jury could not conclude that the trade dress elements at issue are non-functional: The aesthetically pleasing nature of the designs constitutes part of the actual benefit that the consumer wishes to purchase, “as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product.” Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1506-07 (9th Cir.1987) (internal quotation marks and citation omitted). Because functional elements are not protecta-ble as trade dress, we affirm the district court’s judgment as to trade dress…