Today the Seventh Circuit Court of Appeals decided Georgia-Pacific Consumer Products LP v. Kimberly-Clark Corp. On the merits, the case upheld a district court opinion finding that Georgia-Pacific's "Quilted Diamond Design" on toilet paper was functional, and therefore not entitled to trademark protection.
However, what's really great about Judge Evans' opinion is the opening paragraphs, reproduced here. Not only does this hilarious prose make you want to read the rest of this opinion, but it also lets me blog this with both a "trademark" and "humor" label:
EVANS, Circuit Judge. Toilet paper. This case is about
toilet paper. Are there many other things most people
use every day but think very little about? We doubt it.
But then again, only a select few of us work in the
rarefied air inhabited by top-rate intellectual property
lawyers who specialize in presenting and defending
claims of unfair competition and trademark infringement
under the Lanham Act, 15 U.S.C. §§ 1051 et seq. And the
lawyers on both sides of this dispute are truly firstrate.
Together they cite some 119 cases and 20 federal
statutes (albeit with a little overlap) in their initial
briefs. We are told that during the “expedited” discovery
period leading up to the district court decision we are
called upon to review, some 675,000 pages of documents
were produced and more than a dozen witnesses were
deposed. That’s quite a record considering, again, that
this case is about toilet paper.
We’ll start by introducing the combatants. In the far
corner, from an old cotton-producing state (Dixie: “I wish
I was in the land of cotton, old times there are not forgotten.”)
and headquartered in the area (Atlanta) where
Scarlett O’Hara roamed Tara in Margaret Mitchell’s epic
Gone With the Wind, we have the Georgia-Pacific Company.
Important to this case, and more than a bit ironic, is that
the name of Georgia-Pacific’s flagship toilet paper is
Quilted Northern. In the near corner, headquartered in the
north, in Neenah, Wisconsin (just minutes away from
Green Bay), and a long way from the land of cotton, we
have the Kimberly-Clark Corporation. Ironically, its
signature toilet paper brand is called Cottonelle.
The claim in this case is that a few of Kimberly-Clark’s
brands of toilet paper are infringing on Georgia-Pacific’s
trademark design. But again, this case is about toilet
paper, and who really pays attention to the design on
a roll of toilet paper? The parties, however, are quick to
inform us that in a $4 billion dollar industry, designs
are very important. Market share and significant profits
are at stake. So with that, we forge on.