Derek Andrew Inc v. Poof Apparel Corporation

BACKGROUND

A. THE PARTIES AND PROPERTY RIGHTS AT ISSUE

Andrew and Poof are corporations engaged in the apparel

1 Poof also challenges other rulings by the district court; we reject those arguments in a memorandum disposition filed this date. DEREK ANDREW v. POOF APPAREL CORP. 6663 business. Of primary importance to this appeal is Andrew’s “Twisted Heart” clothing line—a line of casual sportswear for women aged 14-70. Consumers can find this line at high-end department stores such as Nordstrom, Saks Fifth Avenue, and Neiman Marcus. The average price of Twisted Heart clothing is approximately $100.

Andrew’s Twisted Heart line is identified by its label and, in particular, its “hang-tag” featuring its “Heart Design” and “Twisted Heart” trademarks.2 Developed and first used in 2003, the Twisted Heart hang-tag hangs from the garment by a small, satin ribbon. The tag, including its configuration and the artwork in the label, was registered with the U.S. Copy- right Office on June 15, 2005.

Poof sells women’s clothing to retail stores and other cus- tomers throughout the United States. Most of its clothes are manufactured abroad and are shipped throughout the…