Bodum USA, Incorporated v. A Top New Casting Incorporated

                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18‐3020
BODUM USA, INCORPORATED,
                                                   Plaintiff‐Appellee,
                                 v.

A TOP NEW CASTING INCORPORATED,
                                               Defendant‐Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
          No. 16‐cv‐02916 — Matthew F. Kennelly, Judge.
                     ____________________

       ARGUED MAY 30, 2019 — DECIDED JUNE 12, 2019
                ____________________

   Before FLAUM, MANION, and BARRETT, Circuit Judges.
    FLAUM, Circuit Judge. Bodum USA, Inc. (“Bodum”) pro‐
duces and sells what design magazines and art museums
have recognized as an iconically designed houseware prod‐
uct—the Chambord French press coffeemaker. Bodum sued
A Top New Casting, Inc. (“A Top”) for selling a French press
that Bodum claimed infringes on its unregistered trade dress
in the Chambord. After a five‐day trial, a jury returned a ver‐
2                                                   No. 18‐3020

dict in favor of Bodum, finding that A Top had willfully in‐
fringed on Bodum’s trade dress in the Chambord and award‐
ing Bodum $2 million in damages. The district court denied
A Top’s post‐trial motion for judgment as a matter of law, in
which A Top argued that Bodum failed to prove the Cham‐
bord design was nonfunctional. A Top also moved for a new
trial because the court excluded evidence of various utility pa‐
tents covering French press coffeemakers; the district court
denied this motion as well. We affirm.
                        I. Background
    Plaintiff‐appellee Bodum has been selling French press
coffeemakers since the 1970s. A French press is a nonelectric
coffeemaker consisting of a cylindrical carafe and a plunger
attached to a filter screen. The user adds boiling water to cof‐
fee grounds in the carafe and, after the grounds have steeped,
presses the filter down slowly through the carafe to separate
the used grounds from the brewed coffee.
   Bodum began distributing the Chambord, its flagship
French press, in 1983. The Chambord’s design originated in
France in the 1930s and is based on the towers of the Cham‐
bord Chateau, a castle in France’s Loire Valley. Its features in‐
clude a metal cage with a band around the top of the carafe,
metal pillars ending in four curved feet, a C‐shaped handle,
and a domed lid topped with a spherical knob. Bodum’s
Chambord French press is pictured below:
No. 18‐3020                                                   3




    Bodum acquired exclusive rights to distribute the Cham‐
bord in 1991 and has spent millions of dollars promoting it in
print and television advertisements and at trade shows
worldwide. Bodum sells the Chambord in department stores,
at Starbucks coffee shops, and online, including through Am‐
azon. The Chambord design has been recognized as classic by
such institutions as Phaidon Design Classics and the Museum
of Modern Art. Bodum actively polices whatever it believes
to be infringement of this design; it has sent dozens of cease‐
and‐desist letters over the past twenty‐five years and has filed
lawsuits against alleged infringers when they did not stop
selling their products in response to Bodum’s requests.
   In 2014, defendant‐appellant A Top began selling a com‐
peting French press coffeemaker called the SterlingPro exclu‐
sively through Amazon. The SterlingPro is similar in appear‐
ance to the Chambord, with the same metal cage, metal pillars
ending in curved feet, C‐shaped handle, and domed lid
4                                                  No. 18‐3020

topped with a spherical knob. The two coffeemakers are pic‐
tured side‐by‐side below, with the Chambord on the left and
the SterlingPro on the right:




    Bodum filed a complaint against A Top in the Northern
District of Illinois on March 7, 2016, bringing claims for trade
dress infringement under the Lanham Act, 15 U.S.C.
§ 1125(a); common law unfair competition; and violation of
the Illinois Uniform Deceptive Trade Practices Act, 815 Ill.
Comp. Stat. § 510/1 et seq. According to Bodum’s complaint,
A Top intentionally adopted the overall appearance of the
Chambord for its SterlingPro product, infringing on its unreg‐
istered trade dress in the design. A Top moved for summary
judgment on Bodum’s claims twice, but the district court de‐
nied these motions and the case proceeded to a jury trial on
March 28, 2018.
   The jury returned a verdict in Bodum’s favor, finding that
A Top willfully infringed on Bodum’s Chambord trade dress
and awarding Bodum $2 million in damages. A Top timely
moved for judgment as a matter of law under Federal Rule of
No. 18‐3020                                                    5

Civil Procedure 50 and for a new trial under Rule 59. As rele‐
vant here, A Top claimed that it was entitled to judgment as a
matter of law because Bodum had failed to prove its Cham‐
bord trade dress elements were nonfunctional. And A Top
said it was at least entitled to a new trial because the district
court erred in excluding evidence under Rule 403 of utility
patents that, it said, disclosed the Chambord’s trade dress fea‐
tures (demonstrating the functionality of those features). The
district court denied both motions on June 6, 2018.
    On August 21, 2018, the district court granted Bodum’s
motion for enhanced damages, awarding prejudgment inter‐
est and doubling the damages award to $4 million, and it de‐
nied Bodum’s motion for attorney’s fees. Further, the court
granted Bodum’s request for a permanent injunction to pre‐
vent A Top from continuing to sell its infringing SterlingPro
products. The district court entered final judgment on August
23, and A Top timely appealed.
                        II. Discussion
    A Top pursues two arguments on appeal. First, A Top says
that it is entitled to judgment as a matter of law because
Bodum did not meet its burden of demonstrating that the el‐
ements of the claimed Chambord trade dress were nonfunc‐
tional (as required for it to be enforceable under the Lanham
Act). Second, A Top claims that it is entitled to a new trial be‐
cause the district court improperly excluded several utility
patents from evidence under Rule 403.
   A. Functionality of the Chambord Trade Dress
   We review de novo the denial of a Rule 50 motion for judg‐
ment as a matter of law. Thorne v. Member Select Ins. Co., 882
F.3d 642, 644 (7th Cir. 2018). “Because a jury has rendered a
6                                                     No. 18‐3020

verdict, we view the evidence in the light most favorable to
that verdict.” Matthews v. Wis. Energy Corp., 642 F.3d 565, 567
(7th Cir. 2011). In our review, we do not make credibility de‐
terminations or reweigh the evidence; we need only deter‐
mine that there is more than “a mere scintilla of evidence” to
support the verdict. May v. Chrysler Grp., LLC, 716 F.3d 963,
971 (7th Cir. 2013) (quoting Hossack v. Floor Covering Assoc. of
Joliet, Inc., 492 F.3d 853, 859 (7th Cir. 2007)). “In other words,
our job is to decide whether a highly charitable assessment of
the evidence supports the jury’s verdict or if, instead, the jury
was irrational to reach its conclusion.” Id.
    The Lanham Act permits a civil action against any person
who uses “any word, term, name, symbol, or device” “in con‐
nection with any goods or services” in a manner which “is
likely to cause confusion” as to the source of those goods or
services. 15 U.S.C. § 1125(a)(1)(A). The Act’s protection ex‐
tends to a product’s trade dress, which includes a product de‐
sign that is so distinctive it identifies the product’s source. Ar‐
lington Specialties, Inc. v. Urban Aid, Inc., 847 F.3d 415, 418 (7th
Cir. 2017); see also TrafFix Devices, Inc. v. Mktg. Displays, Inc.,
532 U.S. 23, 28 (2001) (“The design or packaging of a product
may acquire a distinctiveness which serves to identify the
product with its manufacturer or source; and a design or
package which acquires this secondary meaning … is a trade
dress[.]”). As with any other trademark, infringement of a
product’s trade dress is actionable under the Act. Arlington
Specialties, 847 F.3d at 418.
   At trial, Bodum was required to prove a number of ele‐
ments for the jury to find trade dress infringement—that it
owns a valid trade dress in the Chambord design, that the
trade dress is not functional, and that A Top’s SterlingPro was
No. 18‐3020                                                             7

likely to cause consumer confusion as to its source. See id. On
appeal, A Top does not dispute that the SterlingPro copies the
Chambord. Instead, A Top only challenges Bodum’s proof on
the functionality of its claimed trade dress.1
     Trademark protection for trade dress, unlike patent and
copyright protection, has no time limit; the Act therefore does
not protect features that are necessary for the use of a product,
so as to prevent one competitor from maintaining a “perpet‐
ual and exclusive right to a useful product feature.” Id. (citing
Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165 (1995)). The
Supreme Court has explained that “‘a product feature is func‐
tional,’ and cannot serve as a trademark, ‘if it is essential to
the use or purpose of the article or if it affects the cost or qual‐
ity of the article.’” Qualitex, 514 U.S. at 165 (quoting Inwood
Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n.10 (1982)). Even
if a claimed trade dress does not satisfy this first test, “it can
still be functional if it is a ‘competitive necessity,’ that is, if its
exclusive use ‘would put competitors at a significant non‐rep‐
utation‐related disadvantage.’” Arlington Specialties, 847 F.3d
at 419 (quoting TrafFix Devices, 532 U.S. at 32–33)); see also Spe‐
cialized Seating, Inc. v. Greenwich Indus., LP, 616 F.3d 722, 727
(7th Cir. 2010) (a design is functional where a product “looks
the way it does in order to be a better [product], not in order
to be a better way of identifying who made it”). Where, as
here, the claimed trade dress is unregistered, it is the burden




    1 In fact, at oral argument, A Top confirmed that it was not arguing
that the SterlingPro did not copy the Chambord, but it instead argued that
it “had a right to copy, right down to the last bolt,” because Bodum did
not have a valid trade dress in the Chambord.
8                                                    No. 18‐3020

of the party asserting protection to prove that the trade dress
is not functional. 15 U.S.C. § 1125(a)(3).
   In deciding whether a trade dress element is functional,
we consider several factors:
       (1) the existence of a utility patent, expired or
       unexpired, that involves or describes the func‐
       tionality of an item’s design element; (2) the util‐
       itarian properties of the item’s unpatented de‐
       sign elements; (3) advertising of the item that
       touts the utilitarian advantages of the item’s de‐
       sign elements; (4) the dearth of, or difficulty in
       creating, alternative designs for the item’s pur‐
       pose; (5) the effect of the design feature on an
       item’s quality or cost.
Ga.–Pac. Consumer Prods. LP v. Kimberly–Clark Corp., 647 F.3d
723, 727–28 (7th Cir. 2011) (citation omitted). No one factor is
dispositive. See id. at 728–31 (considering each factor sepa‐
rately to determine whether it weighs in favor of or against
functionality); Valu Eng’g, Inc. v. Rexnord Corp., 278 F.3d 1268,
1274–75 (Fed. Cir. 2002).
    Bodum claims trade dress protection in the overall ap‐
pearance of the Chambord and identifies the following spe‐
cific elements as contributing to that distinctive look: the
metal band surrounding the carafe that forms support feet
and the handle attachment, the domed lid, the rounded knob
atop the plunger, and the C‐shaped handle. See Comput. Care
v. Serv. Sys. Enters., Inc., 982 F.2d 1063, 1071 (7th Cir. 1992)
(where plaintiff seeks to protect overall appearance of its
trade dress, focus of analysis is on that total appearance rather
than individual design elements in isolation). Bodum does
No. 18‐3020                                                    9

not claim a trade dress in the cylindrical carafe or the plunger,
as it acknowledges those elements are functional for a French
press coffeemaker.
    A Top argues Bodum failed to establish that the claimed
Chambord features are not essential to its use and that these
features do not affect the coffeemaker’s cost or quality. How‐
ever, in its argument, A Top consistently elides the distinction
between a product’s “function” in the everyday meaning of
the term and “functional” as a term of art used in trade dress
law. Bodum does not claim that any French press coffeemaker
with a handle, a domed top, or metal around the carafe in‐
fringes on its trade dress. Rather, it is the overall appearance
of A Top’s SterlingPro, which has the same shaped handle, the
same domed lid, the same shaped feet, the same rounded knob,
and the same shaped metal frame as the Chambord, that
Bodum objects to. Thus, to establish it has a valid trade dress,
Bodum did not have to prove that something like a handle
does not serve any function. It merely needed to prove that
preventing competitors from copying the Chambord’s partic‐
ular design would not significantly disadvantage them from
producing a competitive and cost‐efficient French press cof‐
feemaker. See Arlington Specialties, 847 F.3d at 419.
    When properly framed in this manner, Bodum presented
sufficient evidence for a reasonable jury to conclude that the
Chambord’s overall look was nonfunctional. First, regarding
the utilitarian properties of the Chambord’s design elements,
see Ga.–Pac. Consumer Prods., 647 F.3d at 728, Bodum’s func‐
tionality expert Robert Anders testified about their nonutili‐
tarian nature. He testified that the only functional parts of the
Chambord—the parts that are necessary to make French press
coffee—are the plunger and cylindrical shape of the carafe. In
10                                                        No. 18‐3020

contrast, Mr. Anders did not believe the particular C‐shape of
the Chambord’s handle worked better than an alternatively
shaped handle and, in fact, testified that he thought the C‐
shape was “not as ergonomically designed as it could be.” Mr.
Anders further testified that the dome‐shaped lid was an “ar‐
bitrary design” because the lid “could be of any shape” in or‐
der to work, and the metal frame is “absolutely not” necessary
for the Chambord to make French press coffee.
    A Top’s expert, Peter Bressler, agreed. He “didn’t see par‐
ticularly great advantage in the design of the handle, but [he]
saw an advantage in having a handle.” Whether it is more ad‐
vantageous for a French press to have a handle, however, is
not the pertinent inquiry; the question is whether there is an
advantage to having this designed handle, to which Mr. Bressler
agreed there is not. The same is true of the feet: Mr. Bressler
testified he “didn’t see a particular advantage in the design of
the feet, but [ ] saw the fact that it had feet, which, to [him],
was a utilitarian advantage.” Again, this does not speak to
any advantages of the design of the feet. Overall, Mr. Bressler
testified that “[t]he utilitarian advantages … are not that
clear.” This evidence weighs in favor of nonfunctionality be‐
cause it supports that the claimed Chambord features are
“merely ornamental” and are not necessary to make the
Chambord work better as a French press coffeemaker. Arling‐
ton Specialties, 847 F.3d at 420 (citation omitted).2


     2A Top points to two changes Bodum made to the Chambord in re‐
sponse to safety issues the United States Consumer Product Safety Com‐
mission raised—reducing the size of the knob and redesigning the lid to
fit deeper into the carafe—as evidence the knob and lid are functional.
However, Bodum could have reduced the size of the knob and made it a
flat disk or redesigned the deep‐fitting lid to be flat instead of domed
No. 18‐3020                                                            11

    Next, A Top argues that Bodum admitted the Chambord
design was functional in its advertising and thus failed to
meet its burden of proving nonfunctionality. See Ga.–Pac. Con‐
sumer Prods., 647 F.3d at 730 (advertising that touts the de‐
sign’s “utilitarian advantages” can weigh in favor of function‐
ality). Indeed, Joergen Bodum, CEO of Bodum’s parent com‐
pany, testified regarding Chambord advertisements describ‐
ing the product as “functional” and about an interview he
gave in which he described Bodum’s products as “function‐
driven.” However, he also explained that these references to
functionality were not invoking the term’s legal definition but
were merely intended to convey that Bodum’s products work.
In fact, Bodum’s advertising for the Chambord never claimed
any of its design features worked better than other options—
for example, it never claimed the handle is an ergonomic
shape nor that its four curved feet provide stability. Rather,
the advertising focused on the classic look of the Chambord
design. Thus, a reasonable jury could weigh this evidence
against a finding of functionality in the legal trade dress
sense.
    Additionally, Bodum introduced a plethora of evidence
regarding the availability of alternative designs, which sup‐
ported the Chambord’s lack of functionality. Id. It introduced
as trial exhibits competing manufacturers’ French presses fea‐
turing different design elements, including those made of dif‐
ferent materials, with differently shaped handles, lids,
plunger knobs, and frames, those that do not have transpar‐
ent carafes or do not have feet, and those with differently

while still remedying these safety concerns. There is no evidence that the
appearance of the features as redesigned are necessary for a competitive
product, from a use (or cost) perspective.
12                                                    No. 18‐3020

shaped external structures surrounding the cylindrical carafe.
See Appellee Br. at 4 (pictures of alternatively designed
French presses introduced as trial exhibits). More im‐
portantly, Bodum introduced evidence that both it and A Top
sell French presses with alternative designs and made of dif‐
ferent materials. Thus, there was ample evidence before the
jury in Bodum’s favor on this factor.
    Finally, we must consider the cost or quality advantage
test of functionality. See TrafFix Devices, 532 U.S. at 32; see also
Ga.–Pac. Consumer Prods., 647 F.3d at 731. Again, Bodum pre‐
sented sufficient evidence from which a jury could conclude
that the Chambord’s design conferred no cost or quality ad‐
vantage that made it functional. Bodum’s expert, Mr. Anders,
testified the Chambord design was “complex” and that there
are “simpler ways of doing this.” He explained the more com‐
plex the structure, the more expensive the product is to man‐
ufacture, so he disagreed with A Top’s expert that the Cham‐
bord was the least expensive method to manufacture a French
press. Mr. Anders also explained that plastic is generally
cheaper to use than metal in manufacturing, so plastic‐framed
French presses would be cheaper to manufacture than the
metal‐framed Chambord.
    Joergen Bodum further supported Mr. Anders’s opinion
in his testimony regarding the many different French presses
Bodum produces. For example, Bodum’s “Bistro” French
press does not have a metal frame, a domed lid, or a C‐shaped
handle. Mr. Bodum testified that the Bistro is less expensive
to produce (“maybe less than half of what it costs to make a
Chambord”) and less time‐consuming to produce because it
requires less material than the Chambord. Although the Bis‐
tro was a successful first product for the company, Mr.
No. 18‐3020                                                                 13

Bodum testified he decided to produce the Chambord, a more
complex and expensive product, in addition to the Bistro be‐
cause he was interested in its iconic French design. Mr.
Bodum also discussed the manufacturing costs to produce
Bodum’s various French press coffeemakers. He explained
that the Chambord is neither the cheapest nor the most expen‐
sive French press Bodum sells.3 Thus, Mr. Bodum’s testimony
supported that the Chambord’s overall design conferred no
particular cost advantage that made it functional.4

    3 A Top repeatedly states in its brief that Mr. Bodum testified the
Chambord provides a cost advantage. The trial testimony A Top cites for
the proposition, however, does not support this assertion. Though Mr.
Bodum did answer affirmatively that the Chambord design “gives a cost
advantage in manufacturing over other types of French presses,” it is
abundantly clear from the surrounding answers that Mr. Bodum
misspoke in answering this question. Immediately before this answer, Mr.
Bodum explained that the Chambord is “one of the most expensive” cof‐
feemakers to manufacture, and immediately after, Mr. Bodum confirmed
that the Chambord’s design does not “result from the fact that it was so
inexpensive to manufacture.” A Top’s efforts to take Mr. Bodum’s mis‐
statement as an admission are therefore unavailing.
    4  A Top relies on Apple Inc. v. Samsung Electronics Co., 786 F.3d 983
(Fed. Cir. 2015), rev’d and remanded on other grounds, 137 S. Ct. 429 (2016),
to argue that Bodum’s evidence regarding the relative costs of the materials
used to make the Chambord is irrelevant and, therefore, that Bodum in‐
troduced nothing to show the Chambord is nonfunctional under the cost
advantage test. Apple, a Federal Circuit case applying Ninth Circuit law,
is not controlling here, but in any event, it is distinguishable. In Apple, the
plaintiff argued that its unregistered trade dress in its product did not re‐
sult from a comparatively simple manufacturing process. Id. at 994. The
Federal Circuit, however, noted that the difficulties plaintiff encountered
in its manufacturing process resulted from its choice to use certain mate‐
rials to improve the durability (i.e., the function) of its product. Id. Thus,
this evidence did not address any cost advantages or disadvantages of
plaintiff’s design. Id. Here, however, Bodum introduced evidence that
14                                                        No. 18‐3020

    Indeed, Jian Liang, A Top’s CEO, testified that A Top pro‐
duces another French press with a plastic frame that is less
expensive than the metal SterlingPro. This testimony further
demonstrates that the Chambord’s design does not provide a
cost advantage. Contrary to A Top’s argument, Bodum pro‐
vided evidence sufficient for the jury to conclude that the
Chambord’s appearance is costlier to manufacture than to de‐
sign around, which supports that the Chambord trade dress
is not functional. See Thomas & Betts Corp. v. Panduit Corp., 138
F.3d 277, 297–98 (7th Cir. 1998).
    Overall, looking at the evidence in the light most favorable
to the verdict, Bodum presented sufficient evidence for the
jury to have found Bodum’s claimed trade dress was non‐
functional. We cannot say the jury was irrational to reach this
conclusion, so we affirm the denial of A Top’s motion for
judgment as a matter of law.
     B. Exclusion of Utility Patents Evidence
    A Top also appeals a related issue—the district court’s de‐
cision to exclude evidence of various utility patents, which
A Top contends demonstrate the functionality of the claimed
Chambord trade dress features. A district court may exclude
relevant evidence where its probative value is substantially
outweighed by, for example, a risk of unfair prejudice or con‐
fusing the issues. Fed. R. Evid. 403. We review evidentiary
rulings for abuse of discretion and will reverse “only if no rea‐
sonable person would agree with the district court’s view.”



French presses can still function when made out of other materials, like
plastic, and that the metal and glass used for the Chambord design do not
confer any particular cost or quality advantage for the product.
No. 18‐3020                                                         15

United States v. Proano, 912 F.3d 431, 438 (7th Cir. 2019). Fur‐
thermore, we accord Rule 403 determinations “‘special defer‐
ence,’ because only ‘in an extreme case are appellate judges
competent to second‐guess the judgment of the person on the
spot, the trial judge.’” Id. at 440 (quoting United States v. Jack‐
son, 898 F.3d 760, 764 (7th Cir. 2018)).
    As noted above, courts consider “the existence of a utility
patent, expired or unexpired, that involves or describes the
functionality of an item’s design element” in considering
whether a claimed trade dress is functional. Ga.–Pac. Con‐
sumer Prods., 647 F.3d at 727–28.5 As the Supreme Court has
explained, a utility patent is “strong evidence that the features
therein claimed are functional.” TrafFix Devices, 532 U.S. at 29.
In other words, “if the ‘central advance’ claimed in the utility
patent matches the ‘essential feature’ of the trademark, there
is strong evidence that the design is functional.” Ga.–Pac. Con‐
sumer Prods., 647 F.3d at 728 (quoting TrafFix Devices, 532 U.S.
at 30).
    Evidence of utility patents came up during Mr. Anders’s
examination. On direct examination, Bodum asked Mr. An‐
ders a total of seven questions about utility patents and
showed him one patent that A Top’s expert had cited in his
report. Mr. Anders testified that, though a utility patent
claiming a feature is evidence that this feature is functional in
the trade dress sense, he did not find any utility patents cov‐
ering the Chambord trade dress features. He believed the pa‐



   5 A utility patent covers “any new and useful process, machine, man‐
ufacture, or composition of matter, or any new and useful improvement
thereof.” 35 U.S.C. § 101.
16                                                No. 18‐3020

tent A Top’s expert cited only disclosed the plunger rod en‐
gaging with the cylindrical walls of the carafe, which Mr. An‐
ders explained is a feature in all French presses and has no
bearing on the Chambord trade dress.
    On cross examination, A Top asked Mr. Anders many ad‐
ditional questions about patents and showed him approxi‐
mately ten utility patents. A Top questioned Mr. Anders
about whether the patents disclosed the same elements
Bodum claims as part of the Chambord trade dress—a domed
lid, a handle, and a circular knob atop the plunger. However,
counsel only provided Mr. Anders with the pictures from the
patents, not the portion of the patents explaining the claims.
Mr. Anders testified that he believed utility patents describe
the claims in words, not in the illustrations, so he would not
agree the patents disclosed any elements of the Chambord
trade dress based solely on a review of the pictures.
    Bodum’s counsel objected to the admission of the patents
as evidence. The court provisionally admitted the patents for
Bodum’s redirect examination of Mr. Anders and then heard
arguments on the objection at the next break in the trial.
Bodum argued the patents A Top sought to have admitted
were irrelevant because they were not patents for any Bodum
or A Top product and were not patents of identical designs.
Bodum also argued the proposed exhibits were incomplete as
they were only a portion of the patents. The district court re‐
quested briefing on the issue of whether utility patents for
similar but not identical products are relevant to the question
of functionality and requested complete copies of each patent.
   After reviewing the parties’ arguments and the entire pa‐
tents, the district court excluded them from evidence. The
court explained it did not matter that the patents were for
No. 18‐3020                                                          17

other parties’ products but it did matter whether the features
Bodum claimed as part of its trade dress were disclosed in the
patents. The court asked A Top to point to language in any of
the patents it sought to admit that claimed as part of the pa‐
tent “any of the features that [Bodum] says are part of its trade
dress.” A Top could not, however, find any such language.
Though it continued to insist the patents described knobs and
domed lids, it could not point to any language in the patents
to support this contention. The patent A Top claimed “most
illuminating” described: “The system of Claim 1 or the cover
means comprising removable cover for the drinking vessel
adapted to fit over the top of the vessel, having an opening
through which the push rod extends the sliding movement
relative to the cover.”6 But A Top was unable to point to a
single patent that claimed a domed lid, a C‐shaped handle, feet
on the bottom of the carafe, or a metallic castle‐shaped cage—
the design elements Bodum claims as its trade dress.
   The district court reviewed the jury instruction on
whether a patent discloses the “practical advantages” of the
design and explained that TrafFix Devices requires that the pa‐
tent somewhere (not necessarily in the claims portion of the
patent) claim the trade dress features in some “significant
way.” Here, none of the patents did so. Though some of the
French presses in the patent pictures had a handle, feet, or
something on top of the plunger, the court did not think that
“bears on the question of whether it’s functional as … trade
dress law defines that term.” The court elaborated:



   6 During argument on the objection, A Top described this as the Banks

patent, 5,618,570, which does not appear to be in the record and is not
mentioned in either party’s appellate briefs.
18                                                    No. 18‐3020

       [T]here is a massive potential for jury confusion
       here if these things are used in the way, frankly,
       that they were used during the cross‐examina‐
       tion of the [ ] expert. You put a picture up there,
       that’s got a handle, it’s got a knob, it’s got a
       plunger, it’s cylindrical like yours, that’s not
       what the inquiry is. The inquiry isn’t whether
       somebody has drawn this picture before. The
       inquiry is whether … the features are claimed in
       a patent in a way that shows that they have
       some sort of a function.
    The court then concluded: “I don’t think it’s relevant. If it’s
relevant, it has teeny teeny probative value, massive potential
for jury confusion. It’s excluded under Rule 403.” The court
did not permit A Top to use the patent evidence with its ex‐
pert and gave the jury a curative instruction: “During the
cross‐examination of witness Robert Anders, he was shown
certain pages from certain patents. I have excluded those pa‐
tents from the evidence in this case. You are not to consider
them for any purpose.”
    The district court did not abuse its discretion in excluding
this evidence. The patents A Top sought to introduce do not
claim any of the features that comprise the claimed Cham‐
bord trade dress. See TrafFix Devices, 532 U.S. at 29 (utility pa‐
tents are evidence “that the features therein claimed are func‐
tional” (emphasis added)). That the patents disclose a plunger
and cylindrical carafe are irrelevant because Bodum does not
claim those elements as part of its trade dress. And the pic‐
tures in the patents showing French presses with handles,
domed lids, or knobs are irrelevant to the legal question of
functionality because the patents do not claim any of those
No. 18‐3020                                                     19

features as part of the patented invention. Permitting the jury
to view and consider the patents would cause confusion as to
the appropriate inquiry for functionality.
    A Top also claims that whether a patent discloses a fea‐
ture’s utility is a question of fact for the jury and, as such, the
district court erred in excluding the patents from the jury’s
consideration. In Thomas & Betts, we explained that a “utility
patent must be examined in detail to determine whether or
not the disclosed configuration is really primarily functional
or just incidentally appears in the disclosure of a patent.” 138
F.3d at 300 (quoting J. Thomas McCarthy, 1 McCarthy on
Trademarks and Unfair Competition § 6:10 (4th ed. 1996)).
There, the district court determined at summary judgment
that because the claimed feature was part of a patent and did
not appear incidentally, it was primarily a functional feature.
Id. On appeal, we determined that this conclusion “necessi‐
tated a weighing of the evidence,” so a jury should have had
the opportunity to decide how much weight to give the patent
considering all the other evidence presented on the function‐
ality issue. Id. The district court’s decision here is consistent
with Thomas & Betts. The court excluded the evidence under
Rule 403, an evidentiary rule that tasks the judge with balanc‐
ing the exclusion of relevant evidence with the risk of harm
from admission. The district court did not decide the func‐
tionality question; it determined that the patent evidence,
while relevant to the question of functionality, posed too sig‐
nificant a risk of jury confusion (an issue not raised by the pa‐
tent evidence in Thomas & Betts).
   This is not one of those extreme cases in which we second‐
guess the trial judge’s weighing of the probative value of the
evidence with the potential for jury confusion on a Rule 403
20                                                          No. 18‐3020

issue. We affirm the court’s denial of A Top’s motion for a
new trial.7
                           III. Conclusion
    For the foregoing reasons, we AFFIRM the judgment of the
district court.




     7In its opening brief, A Top cites to the standard of review for a mo‐
tion for a new trial based on improper jury instructions. However, A Top
does not develop an argument based on any problem with the court’s in‐
structions, and so we do not address this issue. See Ienco v. Angarone, 429
F.3d 680, 685 (7th Cir. 2005).