California Scents v. Surco Products, Inc.

MEMORANDUM *

OVERVIEW

California Scents appeals the summary judgment in favor of its competitor, Pestco, Inc. (“Pestco”), in a trade dress infringement suit. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse. Because the parties are familiar with the factual background, we do not recite the details here.

California Scents seeks trade dress protection for the packaging of its “little can” air freshener in the retail market and claims its dress includes the small aluminum can with a pull-top lid, scratch and sniff labels, bright color scent labels, fragrances named after California cities and sites, and its colorful 18-can display. A plaintiff seeking to recover for infringement of a trade dress under the Lanham Act must prove that its dress is (1) nonfunctional and (2) distinctive and that (3) there is a likelihood that the public would confuse the alleged infringer’s trade dress with that of the plaintiff. See Disc Golf Ass’n v. Champion Discs, Inc., 158 F.3d 1002, 1005 (9th Cir.1998).

The district court held that California Scents’s dress was functional and therefore not protectable and awarded summary judgment to Pestco. This Court reviews an award of summary…