TM And Design Patent Conflict

For long, when we compare the trademark with that of a design, the inclusion of trademark in the design was not meant much when we talk about the design patent infringement analysis. In one of the recent cases of Columbia Sportswear North America Inc. vs. Seirus Innovative Accessories Inc., where it was put to question that whether any such inclusion or a trademark's appearance and placement might "give an ordinary observer a different visual impression" than the patented design. 3:17-cv-01781 (S.D. Cal Aug. 6, 2021). The jury was of the view that the design patent at issue was not infringed if the accused design included a trademark. This verdict departs from the precedent from Federal Circuit in L.A. Gear v. Thom McAn Shoe Co., 988 F.2d 1117, 1126 (Fed. Cir. 1993), where it held that including a mark or labelling does not avoid design patent infringement as shown in the following shoe design and accused shoe.