UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JASON SCOTT COLLECTION, No. 21-16978 INC., an Arizona corporation, Plaintiff-Appellee, D.C. No. 2:17-cv-02712- v. JJT TRENDILY FURNITURE, LLC, a Texas limited liability company; OPINION TRENDILY HOME COLLECTION, LLC, a Texas limited liability company; RAHUL MALHOTRA, an individual, Defendants-Appellants.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Argued and Submitted December 5, 2022 Phoenix, Arizona

Filed May 30, 2023

Before: Kim McLane Wardlaw and Patrick J. Bumatay, Circuit Judges, and Karen E. Schreier,* District Judge. * The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. 2 JASON SCOTT COLLECTION, INC. V. TRENDILY FURNITURE, LLC

Opinion by Judge Wardlaw

SUMMARY**

Lanham Act

In a case in which defendants Trendily Furniture, LLC, Trendily Home Collection, LLC, and Raul Malhotra (collectively, “Trendily”) intentionally copied three unique high-end furniture designs by plaintiff Jason Scott Collection (JSC) and sold nearly identical pieces to Texas retailers, the panel affirmed the district court’s decision, following a bench trial, holding Trendily liable on trade dress infringement claims and awarding attorney’s fees. Trendily did not challenge on appeal the district court’s summary judgment to JSC on its copyright claim. To obtain a judgment for trade dress infringement under the Lanham Act, a plaintiff must prove: (1) that its claimed trade dress is nonfunctional; (2) that its claimed dress serves a source-identifying role either because it is inherently distinctive or has acquired secondary meaning; and (3) that the defendant’s product or service creates a likelihood of consumer confusion. Because the parties stipulated to nonfunctionality, the district court relied upon that stipulation at trial, and Trendily did not provide a good reason for disregarding that

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. JASON SCOTT COLLECTION, INC. V. TRENDILY FURNITURE, LLC 3

stipulation, the panel accepted that JSC’s claimed trade dress is nonfunctional. Because the parties also stipulated that JSC’s trade dress is not inherently distinctive, JSC needed to prove its trade dress has secondary meaning. The panel held that the district court did not clearly err in finding that JSC did so. The panel wrote that Trendily’s clear intent to copy nonfunctional features of JSC’s pieces supports a strong inference of secondary meaning. Noting that copyright and trademark are not mutually exclusive, the panel rejected Trendily’s argument that it should be held liable only under the Copyright Act. The panel held that the district court properly considered several other factors including that the JSC pieces were continuously manufactured and sold since 2004, that JSC had a longstanding and well-known presence in the high-end furniture market, and that JSC’s furniture was distinctive in the minds of purchasers. The panel explained that even if it were to disregard JSC’s evidence of retailer confusion, that evidence is not necessary for JSC to establish secondary meaning, and direct proof of end- consumer confusion is not required. Instead, the district court relied on proof of copying and a substantial amount of indirect evidence indicating that JSC’s work was recognizable by both retailers and consumers in the high-end furniture market, as well as advertise