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ARTICLE · 09 JULY 2013

Bern Unlimited, Inc. v. Burton Corp.

Finnegan, Henderson, Farabow, Garrett & Dunner LLP
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Plaintiff Bern Unlimited, Inc. sued five competitors for infringement of the trade dress of its protective sports helmet trade dress consisting of a "rounded profile of the helmet" and "distinctive visor."

United StatesIntellectual Property
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
Finnegan, Henderson, Farabow, Garrett & Dunner, LLP
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This article previously appeared in Incontestable Trademark Newsletter - June 2013.

CASE SUMMARY

FACTS

Plaintiff Bern Unlimited, Inc. ("Bern") sued five competitors for infringement of the trade dress of its protective sports helmet trade dress consisting of a "rounded profile of the helmet" and "distinctive visor."  While Bern's original suit sought relief for design-patent infringement against Burton Corporation alone, it subsequently amended its complaint to include all five defendants and include claims of trade-dress infringement, dilution, and unfair competition.

Defendants, who also make helmets for biking, skiing, snow, and water sporting, moved for summary judgment on all claims, alleging that plaintiff's trade dress was functional and therefore unprotectable.  Defendants' functionality argument relied on evidence of advertisements by plaintiff touting the functional benefits of certain helmet attributes.  Examples include describing the visor as

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