USA – ARIZONA Trends and Developments Contributed by: George Saad, PLATZ JURIS, PLLC
Smucker will need to convince the court that its par- ticular round-and-crimped presentation has acquired distinctiveness as a source identifier, not merely as an efficient way to contain jelly. Academic commentators have already expressed scepticism on precisely that point. Lululemon v Costco Lululemon’s complaint targets Costco’s Kirkland Signature and affiliated apparel, alleging that six garment designs, including versions of the Scuba hoodie, Define zip-up jacket, and men’s ABC pant, infringe Lululemon’s trade dress and design patents, and that Costco’s use of the colour “Tidewater Teal” compounds the mimicry. The complaint weaves in a clever source-confusion theory built on Costco’s use of shared manufacturers: consumers, the argument goes, may reasonably believe Kirkland items come from the same factory floor as the originals. Lululemon’s case is doctrinally richer than the snack disputes because it pleads design patent claims alongside trade dress. That matters enormously after the Federal Circuit’s May 2024 decision in LKQ v GM (discussed below). The case also sits squarely in the Ninth Circuit, a jurisdiction whose trade dress jurispru- dence is central to any brand owner with meaningful West Coast sales, and to any Arizona-based business Pacific Market International, the maker of the viral pop-culture Stanley Quencher and IceFlow tumblers, filed suit against Five Below in the Northern District of California on 06 November 2025, alleging that Five Below’s Hyperquench, Hydraquench, HydraSip, and Hydrachug drinkware infringe its design patents, trade dress, and trade marks. The complaint asserts, among others, U.S. Des. Patent No. D805,838 (tumbler lid) and U.S. Des. Patent No. D955,173 (beverage con- tainer), and pleads trade dress rights in the Quench- er’s squared-off handle, the metal band between cup and lid, and the strip at the top of the lid. PMI accuses Five Below of “parasitic and intentional copying” and alleges wilfulness based on Five Below’s continued sales after receipt of a cease-and-desist letter. The case i s Pacific Market International , LLC v Five Below , Inc ., No. 3:25-cv-09604 (N.D. Cal.). litigating in its home circuit. PMI Worldwide v Five Below
PMI is doctrinally the most interesting of the four pending cases because it engages all three pillars this article discusses – trade dress, design patents, and trade mark – in a single complaint filed squarely in the Ninth Circuit. Five Below’s answer and counter- claims, filed on 2 January 2026, telegraph precisely the defences every brand owner should anticipate. The asserted trade dress features (handle shape, metal banding, lid geometry) are alleged to be func- tional and commonplace across the tumbler market; the asserted design patents are alleged to be invalid as covering utilitarian features in a crowded art; and Five Below seeks declaratory judgment of invalidity, unenforceability, and non-infringement. For any consumer-goods brand owner whose IP strat- egy depends on enforcing trade dress and design patents simultaneously, PMI v Five Below is the case to watch. Its rulings on the functionality of common drinkware features, and its post-LKQ treatment of design patent validity, will ripple across the Ninth Cir- cuit and beyond. The three pillars of protection (and where each one cracks) Pillar one : trade dress Trade dress protects the total visual impression of a product or its packaging – its “look and feel”. Lanham Act § 43 (a), 15 U.S.C. § 1125 (a), provides a federal cause of action, and Two Pesos , Inc . v Taco Cabana , Inc ., 505 U.S. 763 (1992) confirmed that inherently distinctive trade dress is protectable without proof of secondary meaning. The complications arrived shortly after. Wal - Mart Stores , Inc . v Samara Bros ., Inc ., 529 U.S. 205 (2000) held that product design trade dress, as distinct from packaging, is never inherently distinctive and always requires proof of secondary meaning. That is a sub- stantial evidentiary burden typically met only with surveys, long exclusive use, and heavy advertising expenditure. And TrafFix Devices , Inc . v Marketing Dis- plays , Inc ., 532 U.S. 23 (2001) established that func- tional features are categorically unprotectable as trade dress, regardless of how distinctive they may appear. Together, these doctrines mean a brand owner asserting trade dress faces three sequential hurdles:
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