           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    Antioch Company v.                          No. 02-3380
        ELECTRONIC CITATION: 2003 FED App. 0368P (6th Cir.)                      Western Trimming Corp.
                    File Name: 03a0368p.06
                                                                                                _________________
UNITED STATES COURT OF APPEALS                                                                       COUNSEL
                   FOR THE SIXTH CIRCUIT                                    ARGUED: John B. Pinney, GRAYDON, HEAD &
                     _________________                                      RITCHEY, Cincinnati, Ohio, for Appellant. John E. Kelly,
                                                                            KELLY, BAUERSFELD, LOWRY & KELLY, Woodland
 THE ANTIOCH COMPANY ,           X                                          Hills, California, for Appellee. ON BRIEF: John B. Pinney,
          Plaintiff-Appellant,    -                                         GRAYDON, HEAD & RITCHEY, Cincinnati, Ohio, Thomas
                                  -                                         W. Flynn, WOOD, HERRON & EVANS, Cincinnati, Ohio,
                                  -  No. 02-3380                            Steven D.A. McCarthy, BIEBEL & FRENCH, Dayton, Ohio,
           v.                     -                                         for Appellant. John E. Kelly, John D. Bauersfeld, KELLY,
                                   >                                        BAUERSFELD, LOWRY & KELLY, Woodland Hills,
                                  ,
 WESTERN TRIMMING                 -                                         California, Charles J. Faruki, Gerald S. Sharkey, FARUKI,
 CORPORATION ,                    -                                         IRELAND & COX, Dayton, Ohio, for Appellee.
         Defendant-Appellee. -
                                                                                                _________________
                                  -
                                 N                                                                  OPINION
      Appeal from the United States District Court                                              _________________
      for the Southern District of Ohio at Dayton.
  No. 98-00236—Walter H. Rice, Chief District Judge.                          RONALD LEE GILMAN, Circuit Judge. This appeal
                                                                            involves the question of whether, as a matter of law, the
                  Argued: September 10, 2003                                Antioch Company’s scrapbook album configuration is
                                                                            functional and therefore ineligible for trade dress protection.
             Decided and Filed: October 20, 2003                            By seeking trade dress protection for its album design,
                                                                            Antioch is trying to bar Western Trimming Corporation
 Before: MOORE and GILMAN, Circuit Judges; MILLS,                           (Westrim) from selling “knock-off” copies of the album
                 District Judge.*                                           format under the Westrim trademark. For the reasons set
                                                                            forth below, we AFFIRM the district court’s grant of
                                                                            summary judgment for Westrim.
                                                                                                I. BACKGROUND
                                                                            A. Factual background
                                                                               Antioch produces and markets a scrapbook album under the
    *
     The Hon orable R ichard M ills, United States District Judge for the   trademark “CREATIVE MEMORIES” that has several
Central District of Illinois, sitting by designation.

                                   1
No. 02-3380                        Antioch Company v.         3    4     Antioch Company v.                           No. 02-3380
                               Western Trimming Corp.                    Western Trimming Corp.

distinctive features. The album utilizes a dual strap-hinge        Cherished Line albums into the U.S. market pending
design that permits the pages to lie flat when the album is        resolution of the litigation.
open, facilitates the turning of the pages, and enables the easy
insertion of additional pages. Another design element of the         On July 29, 1998, the district court denied Antioch’s
CREATIVE MEMORIES album is its spine cover that                    motion for a preliminary injunction, focusing its discussion
conceals the dual strap-hinge, which causes it to be known as      primarily on the trademark infringement issue. The district
a “closed back” or “bookshelf” album. A third element of           court found that Westrim adopted Antioch’s album design in
Antioch’s album is the laminated, padded album covers.             order to achieve its functional benefits, not to confuse
Finally, the CREATIVE MEMORIES album pages have                    scrapbook enthusiasts about the supplier or source of the
ribbed edges that provide reinforcement, keep them separated,      album. In an unpublished opinion, a prior panel of this court
and hold the staples together. Antioch seeks trade dress           affirmed the district court’s denial of a preliminary injunction,
protection for the CREATIVE MEMORIES album that                    concluding that Westrim would probably defeat Antioch’s
encompasses these above-described features.                        claim of likelihood of confusion when the case went to trial.
                                                                    Antioch Co. v. Western Trimming Corp., Nos. 98-3876, 98-
   In 1997, Westrim, a competitor of Antioch in the hobby and      3943, 1999 WL 777556, at *6 (6th Cir. 1999).
craft industry, decided to copy the Antioch strap-hinge album
in order to provide its customers with the functional benefits        Although it found the oversight harmless, the prior panel
of the design. After determining that Antioch’s patents that       acknowledged that the district court had not addressed the
potentially covered the features in question had expired,          trade dress infringement issue. The panel, nonetheless, drew
Westrim developed and marketed its own version of the strap-       several tentative conclusions about the trade dress claim. In
hinge albums—the “Cherished Line” — under its existing             particular, it expressed skepticism regarding the
“MEMORIES FOREVER” trademark. Through the use of its               distinctiveness and attachment of secondary meaning to the
own distinctive logo and scroll work on the album covers,          Antioch albums, and also observed that the contested spine
Westrim links the Cherished Line to its other photo,               cover was purely functional. Id. at *4.
scrapbook, and related accessories in the MEMORIES
FOREVER product line.                                                 Following the denial of the preliminary injunction and the
                                                                   clear indication that Antioch was unlikely to prevail on its
B. Procedural background                                           trademark infringement claim, Antioch abandoned that cause
                                                                   of action. Antioch instead filed an amended complaint on
  Westrim presented the Cherished Line products at a craft         March 13, 2000, focusing its efforts on its federal and
industry trade show on June 5, 1998. Antioch filed suit three      common law trade dress claims, as well as implied passing-
days later, alleging trademark and trade dress infringement        off claims under § 43(a) of the Lanham Act, 15 U.S.C.
violations under the Lanham Act, 15 U.S.C. §§ 1051–1127,           1125(a), and Chapter 4165.02 of the Ohio Revised Code. The
as well as various state-law claims for trademark                  district court granted Westrim summary judgment on the
infringement, unfair competition, and deceptive trade              implied passing-off claims on September 20, 2001. As a
practices. It essentially protested Westrim’s sale of an album     consequence, only the trade dress claims remained.
that was virtually identical to its own. In addition, Antioch
sought to immediately enjoin Westrim from introducing the
No. 02-3380                        Antioch Company v.         5    6     Antioch Company v.                            No. 02-3380
                               Western Trimming Corp.                    Western Trimming Corp.

   Antioch has alleged that Westrim’s Cherished Line albums                               II. ANALYSIS
infringe on Antioch’s CREATIVE MEMORIES album-
configuration trade dress and page-configuration trade dress.      A. Standard of review
Westrim moved for summary judgment on several grounds,
one of which was that the album and page configurations              We review a district court’s grant of summary judgment de
were functional and thus not entitled to trade dress protection.   novo. Therma-Scan, Inc. v. Thermoscan, Inc., 295 F.3d 623,
Adhering to this court’s decision in Marketing Displays, Inc.,     629 (6th Cir. 2002). Summary judgment is proper where
v. TrafFix Devices, Inc., 200 F.3d 929 (6th Cir. 1999), the        there exists no genuine issue of material fact and the moving
district court applied the “competitive-necessity” test to the     party is entitled to judgment as a matter of law. Fed. R. Civ.
trade dress claim. This test evaluates whether use of the          P. 56(c). In considering a motion for summary judgment, the
particular album design was dictated by competitive necessity      district court must construe the evidence and draw all
because the configuration was purely functional. Westrim’s         reasonable inferences in favor of the nonmoving party.
motion was denied because “the existence of alternative            Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
[album] designs was sufficient to raise a genuine issue of         574, 587 (1986). The central issue is “whether the evidence
material fact” concerning the functionality of Antioch’s           presents a sufficient disagreement to require submission to a
album and page configurations. The district court did,             jury or whether it is so one-sided that one party must prevail
however, invite Westrim to renew its motion for summary            as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
judgment if the Supreme Court, which at the time had under         U.S. 242, 251-52 (1986).
advisement the TrafFix Devices decision, altered the legal
framework for assessing trade dress protection claims.             B. The legal test for trade dress infringement

  In TrafFix Devices, Inc. v. Marketing Displays, Inc., 532           Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),
U.S. 23 (2001), the Supreme Court in fact reversed this            protects a product’s trade dress from infringement. To
court’s prior decision and provided clarification regarding the    recover for trade dress infringement, however, the
appropriate test for evaluating whether a product was              complaining party must “show that the allegedly infringing
nonfunctional and thereby eligible for trade dress protection.     feature is not ‘functional’ . . . and is likely to cause confusion
Based upon the changed landscape after TrafFix Devices,            with the product for which protection is sought.” Wal-Mart
Westrim renewed its motion for summary judgment in the             Stores, Inc., v. Samara Bros., Inc., 529 U.S. 205, 210 (2000)
district court. The district court subsequently granted            (internal citation omitted); see also Abercrombie & Fitch
Westrim’s motion in accordance with the Supreme Court’s            Stores, Inc., v. American Eagle Outfitters, Inc., 280 F.3d 619,
TrafFix Devices guidance. Antioch Co. v. Western Trimming          641 (6th Cir. 2002) (stating that, under 15 U.S.C. 1125(a)(3),
Corp., 196 F. Supp. 2d 635, 643 (S.D. Ohio 2002). From this        the plaintiff has the burden of proving nonfunctionality). In
decision, Antioch appeals.                                         addition, “a product’s design is distinctive, and therefore
                                                                   protectible, only upon a showing of secondary meaning.”
                                                                   Wal-Mart Stores, 529 U.S. at 216; see also Gray v. Meijer,
                                                                   Inc., 295 F.3d 641, 645 (6th Cir. 2002) (explaining that trade
                                                                   dress protection is warranted where a product’s trade dress
                                                                   has acquired secondary meaning in the marketplace, its
No. 02-3380                        Antioch Company v.         7    8     Antioch Company v.                            No. 02-3380
                               Western Trimming Corp.                    Western Trimming Corp.

appropriated features are nonfunctional, and the infringing           On certiorari, the Supreme Court reversed the Marketing
product’s trade dress is confusingly similar to its own).          Displays decision, explaining that this court erred in believing
                                                                   that the test for functionality was “whether the particular
   The district court’s grant of summary judgment was based        product configuration is a competitive necessity.” TrafFix
exclusively on the functionality factor of the trade dress         Devices, 532 U.S. at 32 (quoting Marketing Displays, 200
infringement analysis. It concluded that, as a matter of law,      F.3d at 990). The Supreme Court clarified that the principal
Antioch’s trade dress was functional. Antioch, 196 F. Supp.        basis for assessing the functionality of a product design is the
2d at 643. Antioch contends on appeal that the district court      “traditional rule” originally set forth in a footnote in Inwood
misinterpreted the Supreme Court’s guidance in TrafFix             Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844,
Devices regarding the appropriate tests for evaluating product     850 n.10 (1982), that “a product feature is functional . . . if it
functionality in the trade dress context. In particular, Antioch   is essential to the use or purpose of the article or if it affects
argues that the district court erred in reading TrafFix Devices    the cost or quality of the article.” 532 U.S. at 32-33. Critical
to preclude consideration of evidence of alternative designs in    for the present case, the Supreme Court stated that “[w]here
order to gauge a product’s functionality. Antioch also attacks     the design is functional under the Inwood formulation there is
what it perceives as the district court’s exclusive focus on the   no need to proceed further to consider if there is a competitive
functionality of individual components of the CREATIVE             necessity for the feature.” Id. at 33. The Court went on to say
MEMORIES album, rather than evaluating the trade dress of          that “[t]here is no need . . . to engage . . . in speculation about
the album as a whole. We will first review the guiding             other design possibilities . . . which might serve the same
principles from TrafFix Devices and then take each of              purpose” where functionality is established. Id. In other
Antioch’s contentions in turn.                                     words, “[e]ven if there are alternative designs available in the
                                                                   marketplace, they cannot turn a feature that is functional
  1. Determining product functionality                             under the traditional . . . definition into a non-functional
                                                                   feature which is the exclusive trade dress property of one
    In the decision underlying TrafFix Devices, this court         seller.” 1 J. THOM AS MC CARTHY , MC CARTHY ON
evaluated the functionality of a traffic sign stand by             TRADEMARKS AND UNFAIR COMPETITION § 7:75 (4th ed.
examining whether a key feature was a “competitive                 2003).
necessity,” i.e., whether the “[e]xclusive use of [the] feature
. . . put[s] competitors at a significant non-reputation-related     The Supreme Court did not, however, reject the possibility
disadvantage.” Marketing Displays, 200 F.3d at 940.                that the competitive-necessity test might be applicable in
(emphasis in original) (internal quotation marks omitted). To      certain contexts. Specifically, the Court stated that “[i]t is
further implement the competitive-necessity test, this court       proper to inquire into a significant non-reputation-related
queried whether there were alternative designs available to        disadvantage in cases of [a]esthetic functionality.” TrafFix
competitors to produce the equivalent product with the same        Devices, 532 U.S. at 33 (internal quotation marks omitted).
functional benefits. The availability of alternative designs, in   This concept of “aesthetic functionality” originated from a
other words, would indicate that a company was not at a            comment in the 1938 version of the Restatement of Torts.
competitive disadvantage just because a key feature was            1 MC CARTHY, supra § 7:79. Although the Supreme Court
monopolized by the originator of the design.                       has never directly addressed aesthetic functionality, Justice
                                                                   Breyer’s opinion in Qualitex Co. v. Jacobson Products Co.,
No. 02-3380                         Antioch Company v.          9    10     Antioch Company v.                         No. 02-3380
                                Western Trimming Corp.                      Western Trimming Corp.

514 U.S. 159, 170 (1995), proposed in dicta that where an            Devices, where the Supreme Court applied Inwood in a
aesthetic feature (like color), serves a significant                 straightforward fashion, without looking at alternative
function—such as helping an individual distinguish between           designs, and found that the dual-spring design of the traffic
a heart pill and a digestive tablet—courts should examine            sign stand in question was essential to the stand’s purpose
whether the exclusive use of that feature by one supplier            because it kept the sign upright during inclement weather.
would interfere with legitimate competition. See also                532 U.S. at 33. Although the TrafFix Devices decision does
Abercrombie & Fitch Stores, where this court explained that          not fully resolve the uncertainties of trade dress protection,
the “competitive disadvantage [test] did not displace the            these uncertainties do not affect the present case. The
traditional functionality standard from Inwood,” but rather          traditional Inwood test for functionality is the main rule, and
that it was most “adaptable to the problem of aesthetic              if a product is clearly functional under Inwood, a court need
functionality.” 280 F.3d at 641.                                     not apply the competitive-necessity test and its related inquiry
                                                                     concerning the availability of alternative designs.
  A leading treatise, on the other hand, opines that
“[a]esthetic functionality is an oxymoron,” 1 MCCARTHY ,               2.   The district court properly applied the traditional
supra § 7:81, and reports that a majority of courts have                    rule for assessing the functionality of Antioch’s
rejected the concept. Id. at § 7:80. Because there is no                    product design and correctly rejected evidence of
suggestion that the Antioch scrapbook album is “aesthetically               alternative designs
functional,” we need not address the validity of the concept
any further.                                                            The district court’s opinion in the present case conveys the
                                                                     impression that the court understood TrafFix Devices to
   Since the Supreme Court decided TrafFix Devices,                  categorically reject the competitive-necessity test in all
however, at least one circuit and a leading treatise author have     instances. In deciding what test to apply, the district court
expressed their views that the availability of alternative           stated:
designs may be helpful in applying the traditional Inwood test
for functionality. See Valu Engineering, Inc. v. Rexnord               The Defendant initially argues that, in light of the
Corp., 278 F.3d 1268, 1276 (Fed. Cir. 2002) (commenting                Supreme Court’s decision in TrafFix Devices, the Sixth
that the availability of alternative designs can be “a legitimate      Circuit’s competitive need test is no longer applicable.
source of evidence to determine whether a feature is                   This Court agrees, since the Sixth Circuit adopted that
functional in the first place”); 1 MCCARTHY, supra, § 7:75             test in its decision in TrafFix Devices, a decision which
(stating his personal view that evidence of alternative designs        the Supreme Court reversed. Accordingly, this Court
can be useful in evaluating whether the design “is essential to        will not apply the rejected, competitive need test when
the use or purpose of the article”).                                   ruling upon the Defendant’s Renewed Motion for Partial
                                                                       Summary Judgment. As a consequence, the Court will
   We need not resolve the question of whether evidence of             not consider whether alternative designs exist, when
alternative designs has a place outside of the competitive-            ruling upon that motion.
necessity test because, at the very least, a court is not required
to examine alternative designs when applying the traditional         Antioch, 196 F. Supp. 2d at 640 (internal citations omitted).
test for functionality. That much is clear from TrafFix              The district court went on to apply the traditional rule that
No. 02-3380                        Antioch Company v.        11    12     Antioch Company v.                          No. 02-3380
                               Western Trimming Corp.                     Western Trimming Corp.

“product configuration trade dress is functional when it is        padded album covers were functional. Id. Finally, the district
essential to the use or purpose of the device or when it affects   court concluded that Antioch’s claimed trade dress regarding
the cost or quality of the device.” Id. at 641 (quoting TrafFix    the album’s pages was purely functional because the ribbed
Devices, 532 U.S. at 33).                                          edges had the effect of “reinforcing the pages; keeping the
                                                                   pages separated, and thus, permitting air to circulate between
  Antioch argues that the district court misinterpreted TrafFix    them; and holding the staples in place on a particular page.”
Devices by allegedly determining that the competitive-             Id.
necessity test was “rejected” and “no longer applicable.” We
opt for a more benign interpretation of the district court’s         The dual strap-hinge design, spine cover, padded album
opinion; namely, that the district court correctly concluded       cover, and reinforced pages are all components that are
that the Supreme Court “rejected” the competitive-necessity        essential to the use of Antioch’s album and affect its quality.
test as the main test and reinstated the Inwood formulation as     We thus agree with the district court’s conclusion that there
the primary method for evaluating functionality. The district      was no genuine issue of material fact regarding the
court presumably determined that the competitive-necessity         functionality of Antioch’s album under the traditional Inwood
test was “no longer applicable” to the matter before it because    test. In accordance with TrafFix Devices, the district court
the Antioch v. Westrim trade dress dispute does not concern        therefore committed no error in rejecting the proffered
aesthetic functionality. As stated above, the competitive-         evidence concerning the availability of alternative album
necessity inquiry is still viable in limited circumstances that    designs.
do not exist in the present case. See TrafFix Devices, 532
U.S. at 33.                                                          3.   The district court correctly concluded that
                                                                          Antioch’s claimed trade dress was functional as a
  Although the district court’s opinion leaves room for                   whole
conflicting interpretations in its discussion of TrafFix
Devices, the outcome of the present case is unaffected                Antioch’s remaining contention is that the district court
because the court properly applied the traditional rule from       misapplied trade dress protection law because it focused on
Inwood. It concluded that “the essential feature of                the functionality of individual elements of the album’s trade
[Antioch’s] claimed product configuration trade dress is its       dress rather than the trade dress as a whole. The district court
dual strap hinge design, which is unquestionably functional.”      reasoned that Antioch’s album and page designs did “not
Antioch, 196 F. Supp. 2d at 642. The straps both hold the          constitute protectable trade dress since the components of that
album together and produce the advertised functional benefits      trade dress are functional.” Antioch, 196 F. Supp. 2d at 643.
of allowing the pages to lie flat when the album is open,          In its opinion, the district court was perhaps too categorical in
permitting their easy turning, and enabling the insertion of       summarily rejecting Antioch’s argument that the court had to
additional pages. Id. Referring to this court’s prior              consider whether the overall configuration of the album was
skepticism about the distinctiveness of the spine cover, the       functional, rather than focusing exclusively on its component
district court concluded that Antioch had not raised any           parts. Id. at 642 (“This Court cannot agree.”). Antioch, in
evidence that would create a genuine issue of material fact as     fact, is technically correct that an overall design combination
to whether a spine cover was anything other than functional.       may be deserving of trade dress protection even if the
Id. The district court also determined that the laminated,
No. 02-3380                       Antioch Company v.        13    14    Antioch Company v.                           No. 02-3380
                              Western Trimming Corp.                    Western Trimming Corp.

individual elements are functional, but errs in its contention      The district court relied on the following articulation of this
that this principle is applicable to the present case.            principle in Leatherman Tool Group, Inc. v. Cooper
                                                                  Industries, Inc., 199 F.3d 1009, 1013 (9th Cir. 1999):
  In Abercrombie & Fitch Stores, this court acknowledged
that the Abercrombie clothing catalog could be considered           [W]here the whole is nothing other than the assemblage
nonfunctional even though its individual elements were              of functional parts, and where even the arrangement and
functional: “Even if the elements [of the Abercrombie               combination of the parts is designed to result in superior
catalog] were all separately functional, . . . A&F’s                performance, it is semantic trickery to say that there is
arrangement of these features can constitute more than the          still some sort of separate “overall appearance” which is
sum of its non-protectable parts.” 280 F.3d at 644. Other           non-functional.
circuits are in agreement. See Publications Int’l, Ltd., v.
Landoll, Inc., 164 F.3d 337, 342 (7th Cir. 1998) (“Although       In Leatherman, the plaintiff sought trade dress protection for
none of the functional features of PIL’s cookbooks can be         a multi-purpose pocket knife. The court found that all of the
appropriated to serve as a trade dress, it doesn’t follow that    elements (tool size, shape of handle, shape of tool blades,
the ensemble cannot be.”); Hartford House, Ltd., v. Hallmark      etc.) were chosen as part of the engineering design for the
Cards, Inc., 846 F.2d 1268, 1272 (10th Cir. 1988) (“A             final product, so that even the overall appearance of the tool
combination of features may be nonfunctional and thus             was functional. See also Tie Tech, Inc., v. Kinedyne Corp.,
protectable, even though the combination includes functional      296 F.3d 778, 786 (9th Cir. 2002) (refusing to grant trade
features.”); Fuddruckers, Inc., v. Doc’s B.R. Others, Inc., 826   dress protection to the overall appearance of a device
F.2d 837, 842 (9th Cir. 1987) (“We examine trade dress as a       designed to cut through wheelchair-securement webbing that
whole to determine its functionality; functional elements that    was comprised of separate interlocking functional parts);
are separately unprotectable can be protected together as a       Eppendorf-Netherler-Hinz GMBH v. Ritter GMBH, 289 F.3d
part of a trade dress.”) (internal citation omitted).             351, 358 (5th Cir. 2002) (holding that trade dress protection
                                                                  was unwarranted where the eight design elements of a
  What Antioch glosses over, however, is that in order to         disposable pipette tip were functional and essential to the
receive trade dress protection for the overall combination of     overall operation of the product).
functional features, those features must be configured in an
arbitrary, fanciful, or distinctive way. See TrafFix Devices,       As in Leatherman, Tie Tech, and Eppendorf, where
532 U.S. at 34, where the Supreme Court rejected the trade        engineering necessity influenced the configuration of the
dress protection claim because the sign manufacturer “has         functional components, the main functional benefit of
pointed to nothing arbitrary about the components of its          Antioch’s album is the result of an engineering feature—the
device or the way they are assembled.” In other words, where      dual strap-hinge. Although the district court did not reach the
individual functional components are combined in a                question of whether Antioch’s array of expired utility patents
nonarbitrary manner to perform an overall function, the           covered the features of the album’s trade dress, the court did
producer cannot claim that the overall trade dress is             point out that Antioch’s advertising “touted its patented strap
nonfunctional.                                                    hinge design as allowing pages to lie flat, as well as
                                                                  permitting pages to be turned and added easily.” Antioch, 196
                                                                  F. Supp. 2d at 642. The other features of Antioch’s album
No. 02-3380                       Antioch Company v.        15    16    Antioch Company v.                           No. 02-3380
                              Western Trimming Corp.                    Western Trimming Corp.

work in sync with the dual strap-hinge to provide the user        Devices made clear that if a particular design is functional,
with the advertised benefits. “[B]uyers are assured the           other producers do not have “to adopt a different design
product serves its purpose” when they “see[] the operative        simply to avoid copying it.” 532 U.S. at 35. Likewise, this
mechanism.” TrafFix Devices, 532 U.S. at 34. TrafFix              court in Abercrombie & Fitch Stores pointed out that for
Devices teaches that where an engineering design feature is       “generic product configurations . . . no designer should have
the core component of the overall trade dress, a court may        a monopoly on designs regarded by the public as the basic
focus on the functionality of that key feature.                   form of a particular item.” 280 F.3d at 638.
  In TrafFix Devices, the traffic device for which the designer      The Seventh Circuit case of Publications Int’l Ltd. v.
sought protection was comprised of a dual-spring mechanism,       Landoll, Inc., 164 F.3d 337 (7th Cir. 1998), illustrates the
four legs, a base, an upright, and a sign. Id. The Supreme        principle that trade dress protection is unavailable for overall
Court focused exclusively on the dual-spring design as the        functional designs that represent a type of product.
essential feature of the configuration and dismissed the other    Publications International Ltd. (PIL) sought protection for its
elements of the claimed trade dress as superfluous. Because       cookbook’s trade dress that contained the following
the dual-spring design was “the reason the device works,” the     functional features: large pages (easier to lay flat on the
Court held that the overall product was functional. Id. The       counter), large print font (easier to read while cooking), an oil
district court in the present case made an apt analogy:           cloth cover (easier to clean), large pictures of dishes (to entice
                                                                  the reader to try the recipe), and gilded page edges (to
  In TrafFix Devices, the Supreme Court held that the             eliminate the picture prints “bleeding” over the edge). Id. at
  dual-spring design was the central component of the             341-42. The Seventh Circuit observed that trade dress
  claimed trade dress. Herein, this Court notes that the          protection was not appropriate because “it was the only way
  essential feature of the Plaintiff’s claimed product            the product could look, consistent with its performing each of
  configuration trade dress is its dual strap hinge design,       the product’s functions optimally.” Id. at 342 (emphasis in
  which is unquestionably functional.                             original). It denied trade dress protection to PIL because
Antioch, 196 F. Supp. 2d at 642. In sum, where one key              [e]very producer of a cookbook has to worry about the
functional feature is the reason that the product works,            cover getting spattered, the cook having difficulty laying
whether it is a dual-spring or a dual strap-hinge, then the         the book flat and reading small print from a distance, the
entire product configuration may be considered functional and       photos of the food dishes being too small to entice and
not deserving of trade dress protection.                            inspire, the book as a whole looking cheap, and the pages
                                                                    . . . presenting a ragged appearance because the color
  In addition, where the claimed trade dress is actually a type     pictures that fill them bleed to the end of the page.
of product, one supplier may not monopolize the                     Because of these concerns that are common to all
configuration to the exclusion of others. Antioch argues in its     publishers of fancy cookbooks, it is not surprising that
brief that Westrim could produce other types of albums, like        more than one publisher would find it optimal, wholly
a post-bound album, which provides many of the same                 apart from any desire to confuse consumers about the
functional benefits as the dual strap-hinge album. That             publisher’s identity, to use the very combination of
possibility is irrelevant. The Supreme Court in TrafFix             features that PIL claims compose its trade dress . . . .
No. 02-3380                        Antioch Company v.        17    18   Antioch Company v.                         No. 02-3380
                               Western Trimming Corp.                   Western Trimming Corp.

Id. at 342-43. The court went on to point out that PIL was         keeps downward pressure on prices and encourages
free to adopt a distinctive logo, design, and typeface on its      innovation.” Abercrombie & Fitch Stores, 280 F.3d at 640.
cookbooks to distinguish them from those of its competitors,       As the Supreme Court has advised, “[t]rade dress protection
but that it could not monopolize this type of cookbook. Id. at     must subsist with the recognition that in many instances there
343.                                                               is no prohibition against copying goods and products.”
                                                                   TrafFix Devices, 532 U.S. at 29. Unless an intellectual
  This case presents an analogous situation. Antioch’s             property right protects a product, “competitors are free to
original album design brought together several features—the        copy at will.” Abercrombie & Fitch Stores, 280 F.3d at 640.
dual strap-hinge, the concealed binding, the padded album
covers, and the reinforced pages—that allowed the overall             Trade dress protection, in sum, is not available for
album to function optimally. This type of scrapbook album          functional products. Otherwise, “trademark law, which seeks
meets the functional demands of scrapbook enthusiasts who          to promote competition by protecting a firm’s reputation,”
want the ability to easily add pages to their albums, who like     would “instead inhibit[] legitimate competition by allowing
having the pages turn freely and lie flat when opened, and         a producer to control a useful product feature.” Qualitex, 514
who prefer the aesthetic appearance of the covered spine.          U.S. at 164. The district court, therefore, did not err in
                                                                   denying Antioch trade dress protection for the CREATIVE
   Westrim’s use of its own distinctive logo, scrollwork,          MEMORIES album. Had the court done otherwise, Antioch
stickers, and face sheet provide sufficient signals to scrapbook   would have enjoyed a monopoly in perpetuity for this type of
buyers that its albums are not made by Antioch, and Antioch        scrapbook album, an outcome in conflict with our “laws that
has not contended otherwise. See Abercrombie & Fitch               preserve a competitive economy.” TrafFix Devices, 532 U.S.
Stores, 280 F.3d at 647-48 (holding that even if the overall       at 29.
Abercrombie catalog trade dress was nonfunctional, no
rational trier of fact would confuse it with the American Eagle                       III. CONCLUSION
catalog because of their different styles and the placement of
each company’s trademarks “on practically every page”).              For all of the reasons set forth above, we AFFIRM the
Just as PIL cannot monopolize a particular type of cookbook,       decision of the district court.
Antioch cannot monopolize a particular type of scrapbook
album. We therefore find no reversible error in the district
court’s analysis of Antioch’s overall trade dress claim.
  Affirming the district court’s decision is also consistent
with the general public policy behind trade dress protection as
elaborated by the Supreme Court and adopted in this circuit.
Antioch repeatedly attacks Westrim for slavishly copying the
CREATIVE MEMORIES album. What Antioch fails to
appreciate is that “copying is not always discouraged or
disfavored” and can have “salutory effects.” TrafFix Devices,
532 U.S. at 29. “[C]opying preserves competition, which
