Poultry Feeder Litigation

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From Rebecca Tushnet’s 43(B)log:

CTB sued HS for making an allegedly exact replica of CTB’s poultry feeder, infringing its registered trademarks for product configuration and color (color on the supplemental register).

Pan feeders are the industry standard. The usual configuration: a pan (bottom portion in which feed collects), grill (top portion, usually made up of spokes of varying number, size, and shape), and center cone (feed distribution mechanism). Feeders are sold to roughly forty “integrators,” who own the chickens and dictate which feeders individual growers may use.  Also of relevance, CTB also had a patent for a poultry feeder, which expired in 2010. The patent said it was aimed at providing a “barrier for preventing birds and animals from bodily climbing into the feeder yet simultaneously allowing those that do force their way inside to easily exit without sustaining injury or damaging the feeder apparatus.” (It discloses a locking brood gate and a mechanism for rotationally unlocking and locking the pan structure and grill structure together.

. . . .

Right after the patent expired, CTB filed a trademark application for the configuration of its feeder, which was rejected on functionality grounds. CTB responded and the PTO issued a registration:

The mark consists of a three-dimensional configuration of a unique mechanized poultry feeder which includes a pan structure and a grill structure. When viewed from any side, the perimeter of the feeder has a generally octagonal shape as it has two generally vertical sides, one defined at the bottom of the pan structure and the other defined at the top of the grill structure, and four generally diagonal sides which inter connect the vertical sides to the horizontal sides. Internal angles between the diagonal sides and the vertical sides are generally smaller than the internal angles between the diagonal sides and the horizontal sides. The matter shown in broken lines is not part of the mark and serves only to show the position or placement of the mark.

CTB also sought to register the configuration and the color combination of red pan and gray grill, which was rejected on functionality grounds.  Then it sought to register only the color combination, which application was rejected multiple times for lack of inherent distinctiveness and ended up on the supplemental register.

. . . .

Another patent owned by CTB says: “[I]t is relatively well known within the agricultural industry that adult turkeys and chickens are attracted to the color red and, therefore, many adult turkey and chicken feeding trays are now colored red in order to entice the adult turkeys and chickens to move towards the red feeding tray so that it is easier for the adult turkey and chickens to find their food.” And it touts the virtues of reflective particles, which attract feeding animals, “preferably metallic flecks or flakes, such as titanium or aluminum, or any other metallic or non-metallic material that will bond with the nonreflective material of the feeder.”

. . . .

The patent stated that the area created by the grill and its individual spokes and hub allowed for the functionality of birds entering and exiting the feeder without injury.  CTB’s ads also touted a “patented feeder grill design [that allows] young birds to exit pans easily” and so on, providing further evidence of functionality. The parties agreed that the pan underneath the grill was shaped functionally. This dicated the V-shaped profile of the pan claimed as part of the trade dress. CTB argued that the section connecting the upper grill structure to the lower pan member wasn’t functional: the “two vertical walls, partly formed from the pan structure.” However, the “double-pan lip,” as touted in CTB ads, functioned to save feed.

. . . .

Color:  The parties’ products consisted of a red pan and a grill that is silver with metal flakes or shiny gray. Here’s a great legal sentence: “[I]t is undisputed that chickens are attracted to shiny objects.” CTB argued that metal flakes weren’t relevant because it was claiming only the color gray. But the use of metal flakes in a gray color scheme could be functional. Plus, the parties both used shiny gray, so CTB’s argument meant that it wouldn’t be using an embodiment its own trade dress, which the court thus concluded was red and shiny gray.  There was no presumption of validity here, and CTB’s own patent and ads touted the advantages of using red and shiny gray. Other CTB patents, and other industry patents, also identified red as functional for attracting poultry.  [If functional for poultry, why not for people?]  CTB’s witness Cole also testified that he conducted tests and found that red and shiny gray was close to the best.

CTB argued that there was no scientific evidence to support the conclusion that chickens are more attracted to these colors versus other colors. CTB misperceived on whom the burden lay, and didn’t show that the colors were “ornamental, incidental, or arbitrary” or were chosen for any reason other than functionality. Dismissing its own position in its patent as “apocryphal lore” couldn’t avoid summary judgment.

. . . .

CTB argued that it could still have rights in a color combo, but “a functional arrangement of functional parts remains functional. The undisputed evidence shows that, historically, plaintiff utilized a red pan and metal grill for functional reasons, and, more recently, plaintiff utilizes a red pan and gray plastic grill with metal flakes for functional reasons.”

. . . .

[T]he court went on to deal with remaining unfair competition claims as a matter of failure to show damages/proximate cause instead of pointing out that functionality ended anything but, perhaps, a claim for insufficient labeling. There was no evidence of any harm, just a theory of price erosion.

Link to the rest at Rebecca Tushnet’s 43(B)log

For visitors to TPV who may not have had personal experience with chicken feeders, here is a photo of one of CTB’s chicken feeders with enthusiastic consumers:

And, pursuant to equal treatment of each of the litigants, here’s a photo of an HS (Hog Slat) feeder:

In the lower photo, the chicks are beginning to fledge – grow their adult feathers. Thus, they’re fledglings.