contain emergency essential oils that people primarily women might need when they're out and about i had my client which does business as pinch provisions is the leader in this market and they really helped develop it they started business in two thousand and four they're leading product which is that issue in this case was launched in two thousand and eight it's called the many emergency and it's very cute small kit that hol seventeen emergency essential tiny little bottles of nail polish hair spray other things that women might need when they're out away from home you know they come packaged previously room yes you buy the who do you buy the whole package don't have the selection of brand not know what my client determined was that prior to their entry into this market which they develop women were creating similar things on their own and the innovation in my plan offered was that they actually instead of women having to throw things together they developed tiny little versions of products that were already in use the package should all into this little kit and their initial products were in tens and boxes and window bags and that's what everyone else was using prior to the many emergency kit being launched in two thousand and eight the men emergency care has very different packaging from what was previously in the market the packaging was selected not for any before the court and trademark office yes there were three companion trade dress applications filed there currently all three of them on appeal and the trademark were denied that they were refused by the trademark examiner not on  functionality grounds which is what is the issue on this appeal under the statute the trademark examiner actually has an affirmative duty to consider functionality when reviewing any trade dress application and did not find the packaging to be functional what the trade dress examiner determined was there he found that there had not been sufficient evidence of secondary meaning and he offered that the applications could be converted to supplemental register which is reserved for marks that are capable of serving as trademark now it is strictly an ex parte proceeding with the trademark examiner jury in the trademark examiners brief he withdrew several basis for his refusal and president lee at least one of  companion applications is on remain and and we're still trying to work out it looks like that one probably will go through and the one that is most relevant to this proceeding is the pouch by itself and that is still is still in the process incredibly expensive but it does cost this packaging option does cost significantly more and pinch provisions chose it because they thought in part it was cute and also that it gave a premium feel and would catch attention and store shelves and in fact there's evidence in the record the product is sold at most frequently at some fora which is a major beauty chain and for years and years now it's been one of their best selling products and it sits right next to the register where every customer who that is that is exactly what it is intended for and in fact the fans of the brand are very very thoughtful about their appreciation that there's been you know more than five hundred million consumer impressions on social media and the product is really  f useful but you do in fact throw it away and when you use up the little items inside and many of them are so tiny that you know there's not a single deodorant wipe or a single stain remover away so they do get used up and then you buy a new many many complaints about the lack of utility in the pads and people complained and this is true although it has a cute little shape the squat size of it it doesn't fit well in a w you point out there are also flat metal tins clear plastic bags flat cloth pouches or saw how it chooses those alternative designs and it would seem to me that all of those options including your clients have different advantages and disadvantages i think that would be correct and i think that the pouch that's at issue here probably because the fewest utilitarian advantage you know if you use what you're looking for is a compact thing to tuck into a corner of a suitcase or purse maybe that works but let me let me take this point further to our decision in the specialized seating right case which you frankly seems to me to control this namely we've got a lot of different ways that you and your competitors can graft these different projects products together into one big product for the convenience of the consumer each shape and style you know since as in the seeding case represents a different solution to choices different advantages different disadvantages specialized seating that tells exactly exactly because it was so obvious so well known so generic it wasn't chosen for utilitarian real that it is this core is this part summarized in two thousand and eleven in georgia pacific specialized seeding and j franco vs franek where about one thing which is the intersection between patents and trademarks and they they held that if you have an expired utility patent as well as if you have advertising touting utilitarian benefit which was that issue because it looks better this way or to catch consumer attention but because it's just a way of solving a problem the evidence here shows that this couch was not chosen as a way to solve a problem and in fact it created multiple problems that my  ultimately had to design a separate product to address because people complained it doesn't fit you can't you can't access the contents without opening up the pouch and pulling everything out and rifling through it you can't see the contents and so you pull everything out those are all detractions from this particular package so my client design another product that fulfills the needs that actually just have him show back so it's a terrible product it's not a terrible product i some function and there some utility to a product that doesn't mean it's functional for purposes of trade just like so obviously it was however long before traffics it was but i don't know the traffic's had any negative impact on abbott labs because known that it may be generic at this point i disagree i think they're very i think they're very different i think there are used to be a distinct utilitarian benefits to attend specifically that it protects its rigid in a pretext that chip content is better than soft sided luggage well you raise religious and disability to train you raise a good point there because rigid sided luggage is a product so there we're talking about product design and here we're talking about packaging design and there's a different that when you're looking at trade dress protection and i guess at this case the heart with what's on appeal here is functionality and the question for functionality is whether or not you're patters you need this in order to compete and you know that's the question is whether it affects cost or quality because there's an alternative to the subsidy really well it collapses into effect in cost or quality is really a question of whether or not it would raise the cost or decrease the that way but what the supreme court said in traffic says if you've already claimed utilitarian benefits in a utility patent even if tiger could design around it you picked your horse you rode it which as you tried to get a p i never was much of a traveler and i don't do it anymore yes in too many lines but suppose you had some luggage that looked so obnoxious it would never get mixed up with everybody else's when they're all crying stand in line i think that would be product design and whether or not a manufacturer of that very garish luggage crate argued that there was a function lack of functionality and that they garish design wasn't necessary i don't know that would could be an argument product design trade just would predict what apply there especially if there was a very distinct pattern it wasn't that they were just claiming the garish ness in general but if they were claiming a distinct pattern that was eye catching functionality is not entitled to protection under trademark law it's not a title protection and design pattern is not entitled to protection under copyright law this case boils down to really a determination by the court whether the upload at the plainest product design is primarily dictated by its function not on the undisputed facts the trial court correctly determined that the shape of the pinch products pouch bag is essential to its use and purpose that is to hold things and therefore its design is dictated by that function long time in existence first aid kits are packaged this way in a soft pallet with a zipper that comes over the top of your inner city didn't travel much but if you travel internationally least years ago every airline gave you a little care kids and women's cosmetics are all packaged in the same way in small maybe not a small this mini emergency but small kits that fit in a woman's purse or in a suitcase  a functional design they're entitled to do that because the law doesn't protect products whose design is functional i mean just take a guess an ordinary cylinder houses the liquid if it's a cylinder person and say well i want to copy that cylinder there's nothing unique about that cylinder that's dictated by its functionality and therefore you're entitled to copy   title the copy things that are not protected by copyright law you're inside of the copy of designs that are not protected by trademark law there has to be something unique in the state about packaging something unique and distinct about product designs that give them this distinctiveness the key is think that it's a coca cola bottle holds coca cola it doesn't the back from collapsing as anybody has adopted it understands pitch perfect seems that have changed their theory i think in that in this appeal at first they said this is a pouch a unique design of a bag in a pouch and now they seem to be saying well  not really a pouch it's packaging and i can't quite understand whether they're claiming that the pouch is a package or that this clear plastic box that they put the pouch in is the package if product that the plaintiffs product there's a clear plastic box and then there's two of these kids but either way if they're making a claim that that clear plastic boxes is distinctive there's less m school i think the argument is simply that i mean the the pouch with its contents you kind of straddles the the notion of packaging versus product design and trade dress the supreme court that correctly told us basically you're on the side of treating it as product design in the in the wal mart case but but it's it's not that clear but i think one of the points that council made was that there were problems with this bank and then they slowly redesigned it and that goes to the heart of functionality they designed the bag to function better the function appropriately for them to solve the problem they're saying we designed it to make it worse so why did why doesn't m on this fundamental design is there's nothing new novel or non obvious about this product that would entitle it to a utility pat kelso could you tell us what you think the significance is if conclusion i don't think shoot rises to the level of protection under trademark law i think there has to be some feature something that makes it unique i think you're i have raise is dictated primarily by its function then it cannot in that configuration entitle a person to exclusive rights in the market the easy solution to all of these problems is the brand the  appointed out there not without a remedy all they have to do is put the brand on it now the brand pitch products p p whatever it would be becomes the significant trademark product because he's the source identifying feature of that product and it's not relying on uniqueness of design to to say that this is a trade dress worthy of the protections of the trade mark qualify for protection as trade dress which really is trademark which is a source identifier that's what the consumer relies on when they see that brand the source of that bag no one would even know you can't determine that that's a first aid kit simply by looking at the configuration of the first aid kit it has to have some brand identifier in order to give it that rise it to the level is it at that point wrapped in plastic i think it is sitting on the counters in that plastic box to the tiding the uniqueness of it it would seem so yes yes and the way they they they're doing it now is they put their brand on that box but it's on the outside of that box i think exhibit exhibit x to me at page three of the opinion shows there and they have received trademark protection for the name the word mark i will go very quickly and counsel started by saying this is product design again this is packaging design and you don't have to take my word for it you can take the word of urban mates principal and d s w the customer that purchased in the record there's an e exchange where they talk specifically about the packaging and d s w says we don't care so much about what's inside we care about the packaging they refer to the pouch repeatedly as packaging so that's not my client you know whether it's own affidavit asserting that this is packaging this is actually to other industry insiders a competitor in a customer who also agreed that this is packaging council repeated over and over that this thing is adopted it's not it's not adopt gets adopted i sturdy travel container sold for the purpose of containing your goods when you travel this package is a small much thinner much less thirty packaged designed to hold some emergency essentials and be  when those goods inside are used up and it's the same as in the record we included evidence of other trade dress registrations for makeup lipstick containers lip balm containers make up containers per bottles just because a perfect bottle or makeup container resembles a flower or an ice cube or a tablet does not mean it is any of those things this packaging undeniably resembles adapted but it is not adapted and it is not sold for that purpose what is being sold are the goods inside and this is just a cute way of containing it lastly i want to know that there's a lot of talk about the outer packaging and whether that's really the packaging or the pouch is really the packaging record there's tons of evidence regarding the fact that the inner power which is what is always featured in coverage media crafts social media unsolicited coverage there  hundreds of millions of impressions that consumers have of the pouch by itself which is why my clients separately apply for a trade dress application to protect the entire to gratian with the outer and inner packaging and separately the pouch packaging this is the same in any cosmetics case where you have a make up or a lipstick compact that is sold there's inner packaging to hold the product you really find which is the makeup there's also other packaging to protect the think that the clients sales they have thousands and thousands if not millions of repeat customers indicate that people are using these up and then they're buying new ones the next year which would indicate that they're not going to have a lot of the exterior design looks nice in the store and blends or diver thing and the one other thing i wanted to point out is that council talked a lot about utility patents and first aid kits not of this was in the record while it may be possible that there are utility patents that would cover this the defendant did not identify any utility patents and put them in the record so it's just conjecture at this point and i think what is in the record shows that there's an off there that this is a