Trademarks / Functionality
Kimberly-Clark Finds a Soft Touch on
Appeal
by Natalie A. Bennett
The U.S. Court of Appeals for the Seventh Circuit, on a de
novo review of a district court grant of summary judgment in
favor of defendant in an unfair competition and trademark
infringement suit involving patterned toilet paper, disposed of
plaintiff's claim using ironic and candid prose to explain its
conclusions. Georgia-Pacific v. Kimberly-Clark, Case No.
10-3519 (7th Cir., July 28, 2011) (Evans, J.).
Georgia-Pacific sued Kimberly-Clark over the design similarity
between Quilted Northern and Cottonelle toilet
paper. Both brands bear diamond-shaped designs on the surface of
the paper, and Georgia-Pacific asserted that the
Cottonelle brand infringed its allegedly
"incontestable" trademarks. Kimberly-Clark defended on
the basis that the functionality of the design trumped any goodwill
plaintiff may have made in promoting its mark to consumers. After
Kimberly-Clark
