UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT P AND P IMPORTS LLC, a California No. 21-55013 limited liability company, Plaintiff-Appellant, D.C. No. 8:19-cv-00523- v. DOC-JDE JOHNSON ENTERPRISES, LLC, DBA Tailgating Pros, a Virginia limited liability company, Defendant-Appellee,

and DOES, 1–10, inclusive,

Defendant.

P AND P IMPORTS LLC, a California No. 21-55323 limited liability company, Plaintiff-Appellee, D.C. No. 8:19-cv-00523- v. DOC-JDE JOHNSON ENTERPRISES, LLC, DBA Tailgating Pros, a Virginia limited OPINION liability company, Defendant-Appellant. 2 P AND P IMPORTS V. JOHNSON ENTERPRISES

Appeals from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted April 11, 2022 Pasadena, California

Filed August 24, 2022

Before: A. Wallace Tashima and Kenneth K. Lee, Circuit Judges, and Kathleen Cardone,* District Judge.

Opinion by Judge Lee

* The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. P AND P IMPORTS V. JOHNSON ENTERPRISES 3

SUMMARY **

Lanham Act

The district court reversed the district court’s grant of summary judgment in favor of the defendant in an action alleging trade dress infringement, remanded for further proceedings, and dismissed as moot the defendant’s appeal from the denial of attorneys’ fees.

P&P Imports, LLC, maker of a jumbo red-white-and- blue Connect 4 game, sued Johnson Enterprises, LLC, maker of a similar product, for trade dress infringement. The district court granted summary judgment in favor of Johnson Enterprises on the ground that P&P’s trade dress had not acquired secondary meaning, and therefore was not protectable, because consumers did not associate the trade dress with P&P specifically.

The panel held that trade dress does not have to be linked to a particular company. If consumers link the trade dress to any single (even anonymous) source/company, that is enough to constitute secondary meaning. Because P&P’s evidence of intentional copying and a consumer survey created a genuine issue of material fact about whether its trade dress acquired secondary meaning, the panel reversed and remanded.

The panel dismissed Johnson Enterprises’ attorneys’ fees appeal as moot.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 P AND P IMPORTS V. JOHNSON ENTERPRISES

COUNSEL Mark R. Yohalem (argued), Munger Toller & Olson LLP, Los Angeles, California; Xionan April Hu, Munger Toller & Olson LLP, Washington, D.C.; Casey H. Kempner, P&P Imports LLP, Irvine, California; for Plaintiff- Appellant/Cross-Appellee. James E. Doroshow (argued), Fox Rothschild LLP, Los Angeles, California, for Defendant-Appellee/Cross- Appellant.

OPINION LEE, Circuit Judge:

Imitation may be the sincerest form of flattery but that does not shield someone from being sued for it. Two competing companies created their own three-feet-wide versions of Connect 4, the classic game in which players drop colored plastic coins into an upright game board in hopes of lodging four coins in a row. This case, however, does not involve the original maker of Connect 4, but rather two companies that lifted the Connect 4 concept to create their own oversized versions.

The questi