Copyright and Trade Dress in Jewelry

Scott Kay Heaven's Gates Collection Ring Tacori Engagement Ring Scott Kay isn't your typical jewelry designer. As a self-proclaimed jock who grew up in upstate New York, Kay got into jewelry after picking up a lug nut off the street and retooling it into a ring. But has his inspiration dwindled away? According to, Tacori Enterprises filed an ex parte application for a temporary restraining order and made a motion for a preliminary injunction to prevent further sales of Scott Kay's newest collection. Tacori alleges that the Heaven's Gates Collection, which incorporates a repeating crescent design, infringes it's copyrights and trade dress in bridal jewelry. Furthermore, Tacori sought to bolster the application with claims that its sales of rings with the Reverse Crescent design have exceeded $17.5 million, were featured in a nationally recognized trade journal in May 2009, and that the company has spent over $2.27 million advertising the rings in national magazines. Unconvinced, U.S. District Judge Dale S. Fischer denied Tacori's application. The Court relied on the Ninth Circuit's "substantial similarity" standard which employs a two-part extrinsic and intrinsic test. The ruling explains that the extrinsic test "requires a court to examine the similarities between the copyrighted and challenged works and then determine whether the similar elements are protectable or unprotectable." The intrinsic test is a "subjective comparison that focuses on whether the ordinary, reasonable audience would find the works substantially similar in the total concept and feel of the works." In evaluating the two-part test, the Court relied on evidence submitted by Scott Kay stating that the allegedly similar elements of the parties' rings are standard in this market, so many of these elements are likely not protectable. Furthermore, the Court found that the ordinary, reasonable buyer of these products would likely not be confused by the similarity of the ring designs based on the overall concept and feel in light of their differences. As for the trade dress claim, a plaintiff must demonstrate that (1) the trade dress is nonfunctional, (2) the trade dress has acquired secondary meaning, and (3) there is a substantial likelihood of confusion between the plaintiff's and defendant's products. The Court found that the ubiquitous nature of the Reverse Crescent trade dress defeated the secondary meaning prong, and reasoned that granting exclusive use of the design to Tacori would likely put its competitors at a significant, non-reputational disadvantage. Furthermore, the Court found that Tacori could not establish a likelihood of confusion because there was no evidence that Scott Kay intended to adopt Tacori's design, and the expensive nature of the jewelry required greater customer scrutiny in purchasing decisions. Finally, as for the preliminary injunction motion, the Court found that Tacori failed to show irreparable harm absent injunctive relief, establish that the balance of equities tips in its favor, and that the public interest would be served by the injunction since such factors would depend on the success of its copyright and trade dress infringement claims. Comparing the two rings seen above, how would you rule on this "brilliant" issue?

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