If you've ever dreamed that your trashed pickup might someday resemble an all-terrain military vehicle, I've got good news. The 10th Circuit refused to shut down Urban Gorilla, a company that sells car kits that modify your SUV or pickup to look like a Hummer (see pic).
Who cares? General Motors (who acquired the Hummer line) sought to enjoin Urban Gorilla claiming that the appearance created by the assembled car kits infringed the Hummer's trade dress (the distinguishing design or packaging of a product).
Why did the court rule against GM? The 10th Circuit: (1) had questions about trade dress protection for the Hummer's appearance, (2) held that purchasers who spend $100K+ on an H3 were not likely to be confused by an under $10K car kit, and (3) noted that the products were inherently different (GM sells a faux-military vehicle; Urban sells a kit).
But didn't the kits dilute the Hummer trade dress? Dilution (the tarnishing or blurring of a famous trademark) has a unique standard for trade dress (thanks to a Supreme Court decision involving Victoria's Secret). To win on a dilution claim, GM had to prove actual economic harm (and it didn't).
What's next for GM? Maybe they'll go after this bumper sticker?
To learn more about all things intellectual property, check out my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference (Nolo).
