The district court erred in granting defendant summary judgment in this trade dress infringement case between companies that performed urine tests for doctors.  Plaintiff claimed it presented its test results in a unique graphic form that defendant improperly copied.  Trade dress is protected only if it is non-functional.  There are two steps in determining functionality.  First, the court applies a four-factor test: (1) does the design yield a utilitarian advantage, (2) are alternative designs available, (3) does the plaintiff’s advertising tout the design’s utilitarian advantages, and (4) does the design result from a cheap or simple means of manufacture.  In the second step, the court asks whether the design would impose a significant non-reputation-related competitive advantage.  Here, triable issues of fact remaining under both steps of the analysis.

Ninth Circuit Court of Appeals (Gould, J.); April 4, 2016; 2016 WL 1296194