Anton Hopen reports that GM won an important verdict in a trademark case involving a toy Hummer. The jury awarded over a million and a half dollars for the infringement of GM’s trademark on the distinctive grille design of the Hummer.
What are the two questions? One is whether toy manufacturers are infringing trademarks when they make toy models of trademark-protected vehicles (and presumably aircraft and the like). Now, most automobile designs are not necessarily trademarks — being product configurations, fundamentally — and probably none are registered. But the grille design evidently was ruled not to be functional but to be a trademark feature used as a source indicator for Hummers and which has secondary meaning.
Hopen doesn’t say much — the opinion is reported, however, at 80 USPQ2d 1608, if you want to know more; I can’t give it all away, and besides guessing is allowed in blogs, if not in my day job — but this sounds like it was probably a dilution claim, unless GM argued that it was likely to move into toy sales, which sounds like a stretch.
And the second thing we learn? Plaintiffs that are rich enough, protecting trademarks that are valuable enough, will proceed to trial and final judgment and will get awarded actual money damages in trademark cases.