United States: Trade Dress Claim For Trampoline Unceremoniously Trampled

Last Updated: September 17 2013
Article by Scott J. Slavick

In the recently decided case, Urban Group Exercise Consultants, Ltd. v. Dick's Sporting Goods, Inc., Urban Group claimed that Dick's Sporting Goods' sale of its "Jump Trainer" exercise trampoline infringed the former's unregistered trade dress in its "Urban Rebounder" exercise trampoline. Urban Group lost, and the court's decision in the case provides would-be trade dress plaintiffs (or defendants) with a helpful road map for how best to protect (or defend against) an unregistered trade dress claim.

The court began its holding by explaining that a product's trade dress is defined as the total image of a good, including its design, size, shape, color, texture and graphics. It then explained that courts need to exercise particular caution in extending trade dress protection to product designs, because protecting them raises a potential risk that doing so will hamper efforts to market competitive goods.

Therefore, to prove trade dress infringement premised upon an unregistered product design, a plaintiff must file a complaint that reasonably argues that its own trade dress is not functional, its trade dress has secondary meaning, and there is a likelihood of confusion between the plaintiff's goods and those of the defendant. In Urban Group Exercise v. Dick's, the court spent the bulk of the opinion discussing the second requirement: whether Urban Group's trade dress had attained secondary meaning.

The court began by explaining that a trade dress is considered to have attained secondary meaning when a consumer immediately associates the trade dress with the product's source. Think the curvaceous ribbed-glass shape of the Coca-Cola soda bottle, or the sternly British stiff upper lip of the grill of a Rolls Royce motor car.

To support its contention that it had strongly promoted its unregistered trade dress, which included a vivid red stripe outlining their depiction of the product, Urban Group alleged that:

  1. It had spent millions of dollars advertising its trade dress over the last twelve years.
  2. It typically spends $100,000 per month to advertise its trade dress.
  3. It attends international trade shows to advertise its trade dress.
  4. Nationwide research studies and consumer surveys reference its trade dress.
  5. Its product had been featured on global broadcasts on NBC, CNBC, CNN, etc.
  6. Its product had been featured in notable publications such as Allure, Fit, Home and Garden, etc.
  7. Consumer Products named its product as one of the top U.S. fitness products in 2008.
  8. It had sold millions of units worldwide.
  9. It is found in over 5000 gyms worldwide.

This seems a pretty impressive list of accomplishments for an exercise trampoline. Unfortunately for Urban Group, the court was not equally impressed. The court began by explaining that any advertising or promotional activity prior to the year Urban Group introduced the red outline stripe surrounding its Urban Rebounder trampoline's black jumping mat was irrelevant. The court went even further to explain that even if it considered all of Urban Group's alleged advertising, because the complaint contained no contention that any of those advertisements or promotions stressed or emphasized the alleged trade dress, the company's claims did not support the product's design elements having acquired a secondary meaning. Put another way, to point to a representation on product packaging or in advertising of a specific product—even if that product does have a certain flare in its design, coloration, etc.—does not amount to a verifiable claim that such design, size, shape, color, texture and graphics have separately or collectively acquired a uniquely identifiable secondary meaning that stands singularly dependent of what the product actually it, videlicet a trampoline.

One obvious takeaway from this case is that evidence of advertising is all well and good, but if the advertising does not highlight non-functional and distinctive aspects of the alleged trade dress, the relevance of that advertising may be discounted, if not outright ignored.

The court then went on to explain that the consumer surveys Urban Group referred to were not traditional trademark consumer surveys conducted by trained trademark survey experts, but were medical research studies focused solely on the benefits of rebound exercises. The studies made no mention of the alleged trade dress and therefore, did not support a finding of secondary meaning.

Next, the court discounted the large sales figures offered by Urban Group because they did not identify how many of the units sold actually bore the alleged trade dress. Finally, the court explained that it was ignoring the unsolicited media coverage evidence because it too failed to state whether these broadcasts and other media mentions occurred prior to when the red stripe trade dress was adopted.

Urban Group Exercise v. Dick's is therefore instructive for those interested in asserting trade dress in an unregistered product shape. Potential plaintiffs should consider: (1) making sure that its advertising highlights the non-functional and distinctive aspects of the alleged trade dress; (2) that any surveys it provides are conducted by proven trademark consumer survey experts; (3) identifying exactly how much has been sold of the product bearing the alleged trade dress; and (4) identifying exactly how much of any unsolicited media coverage occurred after the trade dress was adopted. To succeed in a claim asserting an unregistered trade dress against a competitor, a plaintiff will likely need to fulfill all these criteria, and may wish to consider these issues as a branding and product development issue even before ever considering filing a claim. If not, such claim may leap high, but will have a harder landing than was hoped for.

This article is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. Brinks Hofer Gilson & Lione does not intend to create an attorney-client relationship by offering this information and review of the information shall not be deemed to create such a relationship. You should consult a lawyer if you have a legal matter requiring attention. For further information, please contact a Brinks Hofer Gilson & Lione lawyer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Scott J. Slavick
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.