Where there is a demand for a type of product, capitalizing on that demand by copying that product does not necessarily indicate that the original product has secondary meaning. Cicena Ltd. v. Columbia Telecommunications Group, 900 F.2d 1546, 1552 (Fed. Cir. 1990). The copying that was present here cannot support an inference of secondary meaning.
And unlike with a trademark, where repeated purchases of a product support an inference that consumers have associated the mark with the producer or source, one can much less confidently presume that a consumer's repeated purchase of a product has created an association between a particular product configuration and the source. Duraco Prods., Inc. v. Joy Plastic Enters., Ltd., 40 F.3d 1431, 1452-53 (3d Cir.1994); see also Cicena Ltd. v. Columbia Telecomm. Group, 900 F.2d 1546, 1551 (Fed. Cir.1990) ["[S]ales success is not necessarily indicative of secondary meaning, but can be attributed to many other factors[.]"]; Aromatique, 28 F.3d at 873 ("Because the proper inquiry is whether the evidence demonstrates that the purchasing public identifies the asserted mark with the source of the product, sales figures alone are inadequate to establish a connection between a product and its source."); Seabrook Foods, Inc. v. Bar-Well Foods Ltd., 568 F.2d 1342, 1345 (C.C.P.A.1977) (noting that evidence of sales "may have relevance in establishing secondary meaning [but is] not necessarily indicative of recognition of the mark by purchasers as an indication of source of the goods."); McCarthy § 15:47 at 15-67 ("Popularity of a product is not synonymous with secondary meaning.
First, while not impossible, it is difficult for a product to acquire secondary meaning during an 18-month period. Cicena, Ltd. v. Columbia Telecommunications Group, 900 F.2d 1546, 1552 (Fed. Cir. 1990) (use of only 18 months is "evidence point[ing] strongly away from a finding of secondary meaning"); Sunbeam Corp. v. Equity Industries, 635 F. Supp. 625, 630 (E.D.Va. 1987) (same). Therefore, giving due deference to what the jury could have reasonably relied on as a basis for its determinations, the short period during which Braun's blender was on the market prior to the infringement is inconsistent with a finding of secondary meaning.
Here, McKasy and CBK challenge the judgment of trade dress infringement on several grounds. "When dealing with issues of unfair competition law, over which this court does not have exclusive appellate jurisdiction, we look to the law of the regional circuit where the district court sits," here the Eighth Circuit. Cicena, Ltd. v. Columbia Telecommunications Group, 900 F.2d 1546, 1548, 14 USPQ2d 1401, 1403 (Fed. Cir. 1990). McKasy and CBK first argue that the court erred by refusing to instruct the jury that it could not find the Jurgens' asserted trade dress to be "nonfunctional" if doing so would hinder competition.
Courts frequently reject secondary meaning claims based on similarly short periods. See, e.g. , Braun , 975 F.2d at 826 (rejecting secondary meaning argument despite evidence of unsolicited media coverage, television and newspapers advertisements, and sales success; noting "it is difficult for a product to acquire secondary meaning during an 18–month period."); Cicena Ltd. v. Columbia Telecomm. Grp. , 900 F.2d 1546, 1551 (Fed. Cir. 1990) (use for only 18 months is "evidence pointing strongly away from a finding of secondary meaning"); Burke–Parsons–Bowlby Corp. v. Appalachian Log Homes, Inc. , 871 F.2d 590, 595–96 (6th Cir. 1989) (characterizing 20 months as "very short" and deeming it strong evidence against inferring secondary meaning); Co–Rect Products , 780 F.2d at 1332 (affirming summary judgment for defendant; finding "ten months is simply not sufficient time to establish secondary meaning in the market place.") (citation omitted). Compounding this potential fatality is the weak nexus between the claimed trade dress and the source the trade dress purportedly identifies.
We decline to address this theory because there is no precedent for it in the Eleventh Circuit and each of the Federal Circuit and 8th Circuit has rejected it. See Cicena Ltd. and Cicena Inc. v. Columbia Telecommunications Group, 900 F.2d 1546 (Fed. Cir. 1990); Black Decker Mfg. Co. v. Ever-Ready Appliance Mfg. Co., 684 F.2d 546 (8th Cir. 1982) To our knowledge, only the New York district courts have endorsed it and the Federal Circuit opined that "the Second Circuit, if faced with the question, would reject the doctrine of secondary meaning in the making." Cicena Ltd. and Cicena Inc, 900 F.2d at 1550.
Again, Puritan-Bennett's evidence lacks a connection between the HELiOS trade dress and the company's success in the market. See, e.g., Duraco. Prods. Inc. v. Joy Plastics Enters., Ltd., 40 F.3d 1431, 1452-53 (3d Cir. 1994) (stating that sales success by itself is not as probative of secondary meaning in trade dress context because success may be due to the desirability of the product configuration rather than source-designating factors); Cicena Ltd. v. Columbia Tele. Group, 900 F.2d 1546, 1551 (Fed. Cir. 1990) (stating that sales success could be attributed to secondary factors other than trade dress). 3. AMOUNT MANNER OF ADVERTISING
Therefore, the Board is not required to find acquired distinctiveness solely based on five years of sales data and substantially exclusive and continuous use of a mark in commerce. See La. Fish Fry, 797 F.3d at 1337; see also Cicena Ltd. v. Columbia Telecomms. Grp., 900 F.2d 1546, 1551 (Fed. Cir. 1990). The Board has discretion to require more evidence of acquired distinctiveness, particularly for highly descriptive marks.
In reviewing issues not within this court's exclusive jurisdiction, this court applies the law of the regional circuit, in this case the United States Court of Appeals for the Eighth Circuit. See Cicena Ltd. v. Columbia Telecommc'ns. Grp., 900 F.2d 1546, 1548 (Fed. Cir. 1990). The district court's issuance of a permanent injunction and award of attorneys' fees on the grounds that the case is exceptional is reviewed under an abuse of discretion standard.
tion prior to trial, a district court traditionally considers and balances the factors of: (1) the movant's likelihood of success on the merits; (2) whether or not the movant will suffer irreparable injury during the pendency of the litigation if the preliminary injunction is not granted; (3) whether or not that injury outweighs the harm to other parties if the preliminary injunction is issued; and (4) whether the grant or denial of the preliminary injunction is in the public interest."); Katz v. Lear Siegler, Inc., 909 F.2d 1459, 1462-63 (Fed. Cir. 1990) (applying 1st Circuit law for a preliminary injunction, the criteria are "(1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the injunction."); Cicena Ltd. v. Columbia Telecommunications Group, 900 F.2d 1546, 1548 (Fed.Ch-.1990) (applying 2nd Circuit law for a preliminary injunction which requires that the movant must establish "both possible irreparable injury and either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor."); Xeta, Inc. v. Atex, Inc., 852 F.2d 1280, 1282 (Fed. Cir. 1988) (applying 1st Circuit law for a preliminary injunction, the criteria are that "as in other causes of action, the plaintiff must show that there is no adequate remedy at law, that the plaintiff will suffer irreparable injury absent the requested injunction, that such irreparable injury outweighs the harm an injunction would inflict on the defendant, that the plaintiff has shown a likelihood of success on the merits, and that the public interest will not be adversely affected by the grant of the requested injunction."); Matsushita Electric Industrial Co. v. United States,