No. 23-1493 ___________________________

National Presto Industries, Inc.

lllllllllllllllllllllPlaintiff - Appellant

v.

U.S. Merchants Financial Group, Inc., doing business as Greenmade

lllllllllllllllllllllDefendant - Appellee ____________

Appeal from United States District Court for the District of Minnesota ____________

Submitted: June 13, 2024 Filed: November 12, 2024 ____________ Before LOKEN, ERICKSON, and GRASZ, Circuit Judges. ____________ LOKEN, Circuit Judge.

This is an appeal from the final judgment in a complex intellectual property dispute. With many issues resolved, the primary issues are (i) whether National Presto Industries, Inc. (“Presto”), was entitled to a jury trial of its Lanham Act claim that U.S. Merchants Financial Group, Inc. (“U.S. Merchants”), infringed Presto’s unregistered trade dress in its “HeatDish” personal electric heater and (ii) whether the district court1 erred, after a six-day bench trial, in finding Presto failed to prove that its trade dress had acquired secondary meaning, an essential element of a trade dress infringement claim. Concluding the district court did not err in denying a jury trial and in granting judgment on Presto’s trade dress claim, we affirm.

I. Background

Presto is a Wisconsin corporation that manufactures and sells household appliances. In 1989, Presto designed and began selling under the brand name “HeatDish” a personal electric heater with a “high-tech look,” which at that time meant a heater with a parabolic design that looked like a satellite dish. The first HeatDish model was sold at several retail stores, including Price Club, which later merged with Costco. Early sales were poor, and Price Club, prior to its merger with Costco, told Presto “the product was out.” In response, Presto developed a merchandising plan for the “HeatDish” using point-of-sale displays placed at the front of the store or at “end caps” that begin an aisle of merchandise. The displays placed an operational heater on top of a block of HeatDish packages, pointed downward so that passing shoppers could feel the heat.

Presto’s merchandising program improved HeatDish sales at Price Club, which soon merged with Costco. Thereafter, for each heater sales season for nearly thirty years, Costco issued Presto a single-season commitment letter outlining terms of sale for the HeatDish and permitting Presto to employ its merchandising program in designated Costco stores.

HeatDish sales declined during the 2016-2017 season. Costco asked Presto to make changes to reduce distribution costs, including importing the HeatDish directly

1 The Honorable Susan Richard Nelson, United States District Judge for the District of Minnesota.

-2- from overseas and not sending Presto monitors to maintain the point-of-sale displays.2 Mary Jo Cohen, Presto’s CEO, declined to make these changes and rejected Costco’s proposed changes to the terms of the 2017-2018 commitment letter. Costco informed Presto in the spring of 2017 that it would not be purchasing the HeatDish for certain Arizona warehouse locations for the 2017-2018 season, and that Costco may test a different brand of heater in those locations. In the spring of 2018, Costco informed Presto it would not be purchasing the HeatDish for the Arizona warehouse locations for the 2018-2019 season. Costco continued to purchase the HeatDish for other markets but excluded Arizona from the 2018-2019 commitment letter.

U.S. Mercha