Paper Towel Dispensers and Restroom-User Confusion

Via the Trademark Blog, is it a trademark violation to put paper towels in a paper towel dispenser, if the paper towels are manufactured by someone other than the paper towel dispenser?

Answer: Maybe. Or at least, there’s enough of a question there to survive summary judgment.

GP licenses the ENMOTION towel dispenser to distributors who license it to restroom operators. The restroom operators are contractually obligated to use only ENMOTION brand toweling. Von Drehle created compatible (and allegedly inferior) paper for the ENMOTION dispenser. Fourth Circuit reverses lower court’s dismissal of GP’s trademark infringement cause, as GP may be allowed to show actionable post-purchase confusion by the non-purchasing public: namely restroom users who expect ENMOTION towels to come out of an ENMOTION dispenser (GP argued that this was analogous to expectations that COCA COLA is dispensed from a COCA COLA-marked soda fountain.

So no, it’s not a problem that the “consumers” here are restroom patrons that pretty much have no choice about which kind of paper towel they would prefer to use. The court accepts the analogy that what the Defendant is doing is like a hotel lobby that dispenses complimentary generic cola out of a Coca-Cola branded machine. As the consumers are expecting to receive a tasty trademarked beverage, they will be confused when instead they get some brackish generic knock off.

Because the 4th Circuit found there was a disputed question of fact, it remanded the case. GP managed (somehow) to find three experts who could testify that public restroom visitors expect there to be a correlation between the kind of dispenser and the kind of paper towel that comes out. I am exceedingly dubious about those studies’ validity, because I can’t imagine anyone out there seriously expects to be getting “brand name” paper towels. While the Defendant won’t get its summary judgment, I have an awfully hard time believing GP can prevail on this claim before a jury.

As noted on the Trademark Blog, the concurrence at page 25 is pretty entertaining: “oh hey GP, btw, if you win this whole trademark infringement, watch out on that whole ‘tying arrangement’ deal, that’s maybe kind of an antitrust violation you got going on there.”

Also — I don’t think I’ve ever seen an opinion where, as here, rather than writing out the word marks or assigning names for the logos, the actual stylized marks are shown. Is this a common practice that I’m just unaware of because I’m almost always reading from Lexis or WestLaw?

It’s annoying as hell, and doesn’t look very professional. I’m not usually the crotchety type about this kind of thing, but I don’t like it.


Michelle Obama Doll Wears Designer Label Knock Offs

Because clothes are ‘useful articles,’ strong copyright protections are not available to fashion designers. Essentially, so long as parts that are trademarked are not copied as well, cheap clothing retail stores can go on making knock offs of designer labels all they want. And by my reckoning, that’s as it should be — I don’t think the case can be made that we suffer from a shortage of designer label fashion lines, given how every celebrity and their dog have one, so there are no welfare gains to be had from allowing fashion to be copyrighted.

But over at Counterfeit Chic, there’s an interesting suggestion made that, even if you can’t infringe a copyright by making a knock off of a dress, making that same dress for a doll might be infringing.


These Michelle Obama dolls ‘action figures’ feature dress designs of some apparently well known labels:

And what of the designers whose dresses have made fashion history? Paradoxically, if Feinberg had reproduced the dresses themselves and sold them in a Brooklyn boutique, their original designers would have had little or no claim under U.S. law. However, the same may not be true of the 6-inch versions.

Let’s consider each dress individually. Apart from the purple Pinto, which is probably too simple to trigger any sort of protection (belt sold separately), the doll-maker may run a slight risk of playing (court)house with his creations. Either Donna Ricco herself or whoever created the black-and-white fabric pattern might have a copyright claim, depending on how closely Feinberg copied the print. And if either Narciso or Donna created a sketch of his or her respective dress before stitching it, the drawing (though not the dress) would be subject to copyright — making the doll theoretically an infringing derivative work.

As Counterfeit Chic points out, this raises another problem. An infringement claim requires proof of copying — but the copying here would almost certainly have been of Michelle Obama’s actual dresses, not the copyrightable sketches. Proof of copying can also be shown by demonstrating that the alleged infringer had access to the original work and substantial similarity, but would a copy of a non-copyrightable item that is itself a non-infringing depiction of a copyrightable work count as access?