Only in New Orleans. During Mardi Gras, a form of folk art takes discarded beads and twists them into a dog shape, also known as a “bead dog.” A seller of king cakes obtained a trademark for its mascot based on that image (below left), and sued a jewelrymaker who sold necklaces and earrings that also drew upon that image (below right).
The Fifth Circuit affirmed summary judgment for the jewelrymaker, reasoning:
1. The bakery’s “Mardi Gras Bead Dog” mark was descriptive of its products;
2. The mark was not inherently distinctive, and thus may be protected only if it had acquired secondary meaning;
3. Under the applicable seven-factor test, the bakery failed to establish that the mark had acquired secondary meaning; and .
4. While a dog itself cannot be copyrighted, its distinctive collar could potentially be, but on this record the Court concluded that no reasonable juror could find the collars to be “substantially similar in protectable expression.”
Other related state law claims were also dismissed. Nola Spice Designs, LLC v. Haydel Enterprises, Inc., No. 13-30918 (April 8, 2015).