Hwe, Inc. v. Jb Research, Inc.

HWE, Inc. (HWE) brought suit against JB Research, Inc., Hammaeher Schlemmer, and Does I-X (all defendants here styled as JB) for appropriation of the trade dress of its massage table in violation of the Lanham Act, 15 U.S.C. § 1125 (a) and Cal.Bus. & Prof. Code § 17200. JB counterclaimed. Finding that there was no factual dispute as to HWE’s product’s lack of non-functional design and lack of secondary meaning, the district court gave summary judgment for JB. We affirm.

BACKGROUND

Since 1984 HWE has made a massage table sold under the name ACU-MASSAGE, a registered trademark. The table is sold through catalogues of stores such as The Sharper Image, Hammaeher Schlemmer, and in-flight magazines. HWE also markets the table to chiropractors, health clubs, and professionals. It has sold approximately one thousand models a year at approximately $2,000 a table.

In 1990 JB began to manufacture a similar massage pad, called the Relaxor, a registered trademark. JB sells its pad through the Hammaeher Schlemmer and Damark International catalogues and other publications, for a lower price, $350-$600.

In its brief HWE describes its table and marketing technique and JB’s table and technique…