Judge Waxes Comedic On Whether You Can Trademark Quilted Diamonds On Toilet Paper

from the toilet-paper! dept

Tue, Aug 2nd 2011 7:00am — Mike Masnick

Bryan points us to this bit of fun from a judge in opening his ruling in a case over the ability to trademark "quilted diamonds" on toilet paper. The appeals court ruling by Judge Terence Evans opens (as pointed out by Michael Barclay at the link above) in a rather amusing fashion, in clearly mocking the very fact that two consumer products giants, Georgia Pacific and Kimberly Clark are even bothering to fight over the ability to put "quilted diamonds" on toilet paper:

Toilet paper. This case is about toilet paper. Are there many other things most people use every day but think very little about? We doubt it. But then again, only a select few of us work in the rarefied air inhabited by top-rate intellectual property lawyers who specialize in presenting and defending claims of unfair competition and trademark infringement under the Lanham Act, 15 U.S.C. �� 1051 et seq. And the lawyers on both sides of this dispute are truly firstrate. Together they cite some 119 cases and 20 federal statutes (albeit with a little overlap) in their initial briefs. We are told that during the �expedited� discovery period leading up to the district court decision we are called upon to review, some 675,000 pages of documents were produced and more than a dozen witnesses were deposed. That�s quite a record considering, again, that this case is about toilet paper.

We�ll start by introducing the combatants. In the far corner, from an old cotton-producing state (Dixie: �I wish I was in the land of cotton, old times there are not forgotten.�) and headquartered in the area (Atlanta) where Scarlett O�Hara roamed Tara in Margaret Mitchell�s epic Gone With the Wind, we have the Georgia-Pacific Company. Important to this case, and more than a bit ironic, is that the name of Georgia-Pacific�s flagship toilet paper is Quilted Northern. In the near corner, headquartered in the north, in Neenah, Wisconsin (just minutes away from Green Bay), and a long way from the land of cotton, we have the Kimberly-Clark Corporation. Ironically, its signature toilet paper brand is called Cottonelle.

The claim in this case is that a few of Kimberly-Clark�s brands of toilet paper are infringing on Georgia-Pacific�s trademark design. But again, this case is about toilet paper, and who really pays attention to the design on a roll of toilet paper? The parties, however, are quick to inform us that in a $4 billion dollar industry, designs are very important. Market share and significant profits are at stake. So with that, we forge on.

If you'd like to see where it goes from there, you can read the full decision (pdf), but I will say that, given those three opening paragraphs, it's hard not to read the rest of the ruling without thinking that Judge Evans would prefer to be dealing with pretty much any other case rather than one about a dispute on quilted diamonds on toilet paper.

Update: Title changed, as the original was misleading. There was an awkward phrasing in the judges statement about the amount of documents in discovery which suggested that the judges themselves were asked to read all 675,000 pages, but he's really just noting that so many pages were produced during discovery...

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Filed Under: toilet paper, trademark
Companies: georgia pacific, kimberly clark

77 Comments

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Killer_Tofu (profile), 2 Aug 2011 @ 6:53am

Whiskey Tango Foxtrot!?!?!?
Sounds like judge Evans is really going to have to work his ass off on this one.

Maybe one of the companies will attempt to bribe him with a life supply of toilet paper. And not the half ply crap either!
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abc gum, 2 Aug 2011 @ 7:12am

I imagine that most sane people are not aware of any markings upon toilet paper other than that left there by themselves, and that their choice of brand is based upon price rather than pattern.
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Anonymous Coward, 2 Aug 2011 @ 7:12am

It seems sad to me that the judge just can't bite his tongue and do his job. The dispute isn't any different from hundreds of other commercial disagreements, and just because it's about TP instead of industrial machine parts doesn't make it any more or less relevant.

The pattern on TP is important enough to the players involved to have taken it to court. The judge should keep the comedy routine for amateur nights at the Comedy Hole, and get back to taking his job seriously.
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out_of_the_blue, 2 Aug 2011 @ 7:18am

No detail of 14 trillion dollar economies are left to chance.
That's the important implication to "Market share and significant profits are at stake."

Corporations grow to exceed a critical boundary at some point so that the "marginal cost" of a lawsuit is nearly zero, and since a great deal is at stake, they'll sue on any pretext. The out-of-bounds growth of corporatized stupidity argues for limiting the size of corporations. America was not founded for benefit of corporations.
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John Doe, 2 Aug 2011 @ 7:25am

Re:
Hmm, I quite like his sense of humor here. I am no fan of judges, but this guy is funny. Besides, it sounds like he is doing his job, just using a little humor to make toilet paper more interesting.

On a serious note, how do you trademark a common quilting pattern just because it is on TP?
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@J_Plotkin, 2 Aug 2011 @ 7:27am

Who said IP is silly...They're clearly misinformed...
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Anonymous Coward, 2 Aug 2011 @ 7:30am

Re: Re:
My quilted stretched squares toilet paper is in jeopardy!
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The eejit (profile), 2 Aug 2011 @ 7:35am

Re:
Dude, he's got to read more than most Americans will in the rest of their life, before making a judgement. Think on that for a minute.
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Beta (profile), 2 Aug 2011 @ 7:36am

an oasis in the desert
"...Given those three opening paragraphs, it's hard not to read the rest of the ruling without thinking that Judge Evans would prefer to be dealing with pretty much any other case rather than one about a dispute on quilted diamonds on toilet paper."

I beg to differ; it looks to me as if the judge is enjoying himself quite a lot, taking this rare opportunity to exercise some wit in his ruling.
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The eejit (profile), 2 Aug 2011 @ 7:37am

Re: No detail of 14 trillion dollar economies are left to chance.
Stupidity isn't corporatised, but corporations sure are stupefied if anyone else earns money that they could have earned by adapting.
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jackwagon (profile), 2 Aug 2011 @ 7:41am

Re: No detail of 14 trillion dollar economies are left to chance.
Agreed. I used to think I was for small government, but since corporations now run the government, I'm for small corporations.

What I really want is government transparency, but we're not going to get that...
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Pixelation, 2 Aug 2011 @ 7:53am

Let me get this straight. This is a fight over a logo that people will wipe their asses with?

Corporation 1 "Dude, that's our logo that your customers are wiping their shit on. Only we can do that."

Corporation 2 "Guess what we think of your logo?"
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Chronno S. Trigger (profile), 2 Aug 2011 @ 7:54am

Dilbert
As I read the second paragraph all I could think of was:

"Please rise for the honorable Judge Stone Cold Steve Austin"
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A.R.M. (profile), 2 Aug 2011 @ 7:54am

The next case will be...
...these companies suing customers for copyright infringement for not having transformative properties to cover up their designs with a brown smear.

I best have a lawyer ready.
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Dave, 2 Aug 2011 @ 7:55am

Re:
I'm sure he did bite his tongue, considering how firmly entrenched it was in his cheek.

Anyone else feel this is a new low for intellectual pooperty?
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Anonymous Coward, 2 Aug 2011 @ 7:56am

Hum...675,000 pages does seem like an unreasonable amount. But let's try to put that into perspective:

If we assume that books have an average of about 300 pages (not unreasonable for a relatively large story), the judge would have to read the equivalent of 2250 books!!

But that's nothing. If the judge reads one page per minute, and if he didn't have to stop to eat, drink or bathe, he'd be doing it for ~468 days non-stop!! That would take some endurance!

And all of this because of some toiled paper pattern? Has this world gone mad!?
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Karl (profile), 2 Aug 2011 @ 7:57am

Toilet paper
We are told that during the �expedited� discovery period leading up to the district court decision we are called upon to review, some 675,000 pages of documents were produced

I'm curious: if the judge wipes his ass with those documents, is he infringing?

One only hopes we'll find out.
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Harrekki (profile), 2 Aug 2011 @ 8:05am

Re:
I'd rather have an ass like this for a judge than many of the dicks that are on the bench currently.

Even judged need to break the monotony somehow.
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New Mexico Mark, 2 Aug 2011 @ 8:08am

Re:
If more corporate and legal folks actually had some humor and sense of perspective, perhaps ridiculous cases like this could be resolved by a direct contest between CEO's instead of wasting millions of dollars (tax and consumer) with truly asinine conflicts. Let them do SOMETHING to earn those ridiculous salaries and golden parachutes.

http://www.poe-news.com/stories.php?poeurlid=18961
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cc (profile), 2 Aug 2011 @ 8:09am

Re:
At least when the trial is over they'll recycle all that paper and print diamonds on it.
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Rich Kulawiec, 2 Aug 2011 @ 8:18am

When the judge renders his opinion...
...I do hope he publishes it on toilet paper.
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Hawkmoon (profile), 2 Aug 2011 @ 8:19am

It's just a matter of time before the tire companies start suing each other over "trademarked" tread patterns. I wish judges would see these ridiculous lawsuits for what they are and fine the companies who do it. Time for some common sense in our judicial system.
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Nicedoggy, 2 Aug 2011 @ 8:25am

Re:
It is about "toilet paper"! for crying out loud.
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Squirrel Brains (profile), 2 Aug 2011 @ 8:27am

Re:
Don't feel sorry for the judge, feel sorry for his law clerks. The amount of those papers that the judge is actually going to read is very very small. His clerks and their interns are the ones in for the pain.
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Anonymous Coward, 2 Aug 2011 @ 8:31am

Re: No detail of 14 trillion dollar economies are left to chance.
"The out-of-bounds growth of corporatized stupidity argues for limiting the size of corporations."

You know, it does argue for that but it could just as easily argue for a limit on what pretexts one could sue over.
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Qritiqal (profile), 2 Aug 2011 @ 8:36am

If the 675,000 pages are printed on toilet paper...
how many dumps would it take for the judge to get through them all?
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justok (profile), 2 Aug 2011 @ 8:50am

Can't see either side being clean in the end.
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Anonymous Coward, 2 Aug 2011 @ 8:59am

Re: Dilbert
Entirely off-topic, but coincidental enough to make me smile: I just re-watched those two episodes (the pregnancy and the delivery) two days ago.
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ChurchHatesTucker (profile), 2 Aug 2011 @ 8:59am

Re:
The dispute isn't any different from hundreds of other commercial disagreements...

That's rather the problem.
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Anonymous Coward, 2 Aug 2011 @ 9:00am

Re:
If we assume that books have an average of about 300 pages (not unreasonable for a relatively large story)

You, sir, must not read Robert Jordan.
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Vidiot (profile), 2 Aug 2011 @ 9:17am

Serious stuff
Come on, now, this is no laughing matter. A company could be wiped out by an unfavorable decision. The lawyers had best ply their trades effectively.
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Rob, 2 Aug 2011 @ 9:19am

T.P.
Well, it's clearly a SMEAR campaign, trying to make the other side....Well, at one point the .... will hit the fan. I say just let those guys have their diamond T.P. and the other side just use squares turned sideways.

One of these days someone will find a way to wipe our butts with microwaves or something, and T.P. will become obsolete. A few lawyers will be out of jobs; maybe they'll just go out and T.P. each others' houses.
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Paul Alan Levy (profile), 2 Aug 2011 @ 9:29am

Mixed feelings about the humor
I have decidedly mixed feelings about humor in judicial opinions. At one level, it certainly helps break up the day; there is so much dry text, often nonsense in the larger scheme of things, that we have to get through as lawyers (and judges).

But then I remember the request for Supreme Court review that I did about twenty-five years ago, arising out of an opinion by First Circuit Judge Bruce Selya, who is notorious for maximizing the number of obscure words in his opinions. He wrote a decision dismissing a lawsuit that has been brought on behalf of nearly a hundred workers in Puerto Rico who had lost their jobs when a women's underwear factory "reorganized." http://law.justia.com/cases/federal/appellate-courts/F2/835/11/296423/ Judge Selya just could not get over the fact that the factory made women's underwear, and reading the opinion made me wonder whether he has put more effort into inserting double entendres than into making his legal decision. Meanwhile, ninety women were out of a job.

Not that I feel so badly about the fact that Georgia Pacific will have to accept a limited term on its monopoly of the diamond pattern that patent gives it, instead of the indefinite that a trademark would have given it.
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@J_Plotkin, 2 Aug 2011 @ 9:37am

Re: Dilbert
"I hereby sentence you to 5 years of whoop-ass in Federal prison"
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tuscolablue (profile), 2 Aug 2011 @ 9:49am

Like a give a shit what's on my tp besides what I put there.
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Anonymous Coward, 2 Aug 2011 @ 10:01am

Headline is Wrong
Nobody asked the judge to read 675,000 pages. Rather, 675,000 pages were produced in discovery.

No judge would characterize an attorney that attached so many pages to a motion as "firstrate."
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Anonymous Coward, 2 Aug 2011 @ 10:03am

Re: Re:
The basic idea is that if consumers recognize the symbol as an indication that the TP comes from a particular source, then that source can have trademark rights in the symbol.
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Anonymous Coward, 2 Aug 2011 @ 10:05am

Re: Re:
No he doesn't. Nobody asked him to read ever document produced in discovery.
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Anonymous Coward, 2 Aug 2011 @ 10:07am

Re: Re:
Nobody is asking the judge, or his clerks, to read all 675,000 pages produced in discovery.
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Anonymous Coward, 2 Aug 2011 @ 10:08am

Re:
That would be very different and very difficult. You can only have trade dress rights in product design/configuration if such design/configuration is nonfunctional.

Since the tread patterns of tires are functional, and the company wouldn't want to put itself in the position of claiming the patterns are not functional, those cases aren't likely to happen.
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Nicedoggy, 2 Aug 2011 @ 10:15am

Re: Re: Re:
Do you remember the pattern of your toilet paper?
I don't.
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Mike Masnick (profile), 2 Aug 2011 @ 10:19am

Re: Headline is Wrong
You're correct... I've updated and added a correction. The wording was funny and I got confused.
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Jeffrey Nonken (profile), 2 Aug 2011 @ 10:23am

Re: Re:
Ah, but then it wouldn't be a fight over trademarks, would it? This, my friend, would be a patent fight.

http://www.patentstorm.us/patents/4777993/fulltext.html

Actually, I think it's been done, but while I could find a couple indirect references my Google-foo wasn't good enough to find records of actual tread-pattern litigation.
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Jeffrey Nonken (profile), 2 Aug 2011 @ 10:32am

Re: Mixed feelings about the humor
Not sure there's a real parallel, though. One is about people losing their livelihoods to corporate greed; the other is two companies having what amounts to a petty squabble.

Sounds like this Judge Selya needs to get out more. Somebody has to make women's underwear, after all. I bet that somewhere, somehow, is a factory that makes men's underwear, too.
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Anonymous Coward, 2 Aug 2011 @ 10:36am

Re: Re: Re: Re:
I don't.
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btrussell (profile), 2 Aug 2011 @ 10:36am

Re: Re: Re: Re:
Skid-mark pattern, last time I looked.
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Anonymous Coward, 2 Aug 2011 @ 10:37am

Re: Re: Re:
Well, the prior commenter mentioned trademarks, which is why I discussed that area of law.

I would not be surprised at all to learn that there are patents on tire tread patterns.
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Anonymous Coward, 2 Aug 2011 @ 10:38am

Re: Re: Headline is Wrong
True, the wording is a bit cumbersome.
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Ninja (profile), 2 Aug 2011 @ 10:47am

Re: No detail of 14 trillion dollar economies are left to chance.
Holy shit, I'm agreeing with the Troll! 2012 indeed.

Finally you scored one. The world is ran by money. Just like our beloved MAFIAA who chooses litigation over understanding ;)
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Ninja (profile), 2 Aug 2011 @ 10:49am

Re: Re: Re: Re: Re:
And last time you looked was just after reading this article. Examples before that please?

I think they should stop being gay, make the paper plain and save themselves the cost. And maybe give us discounts.
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Anonymous Coward, 2 Aug 2011 @ 11:05am

Maybe the loser could switch from diamonds to pearls. But then I still wouldn't care. What I care about is two things:

1) That it's not overpriced.

2) That it doesn't fall into 1,000 pieces when you wipe.

Maybe these two turd scoopers could be a little cheaper, or at least invest more in quality, if they weren't wasting so much money on legal battles for something maybe 1% of the population even notices, much less cares about.
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DannyB (profile), 2 Aug 2011 @ 11:09am

Here's an idea. . . .
Georgia Pacific will change its product name to: WIPO.
(similar to World Imaginary Property Organization)

Kimberly Clark will change its product name to: iPaper.
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btrussell (profile), 2 Aug 2011 @ 11:20am

Re: Re: Re: Re: Re: Re:
Nope. I'm regular. Once a day, first thing in the am.

Previously? Same pattern, to my untrained eye, regardless of brand or ply.

They are pressed with a pattern to hold the plies together.

It only costs us money when some a**hole feels they were rubbed the wrong way.
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Jay (profile), 2 Aug 2011 @ 11:20am

Re: Re: Re:
What about the lawyers he's chastising as they site these laws and precedents?
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PrometheeFeu (profile), 2 Aug 2011 @ 11:30am

It's looking like there's going to be a follow-up patent case though. The basic thrust of the argument was that the design could not be trademarked because it was covered by a desig patent.
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Anonymous Coward, 2 Aug 2011 @ 11:48am

"... Waxes ... On Toilet Paper"

Am I the only one that parsed that title and instantly thought of a new type of toilet paper that waxes while you wipe?
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David Liu (profile), 2 Aug 2011 @ 11:48am

Re: Re: Re: Re: Re:
Poop jokes. Probably the one time they're actually relevant.
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Anonymous Coward, 2 Aug 2011 @ 12:01pm

Re: Re: Re: Re:
Um...what about them?
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Anonymous Coward, 2 Aug 2011 @ 12:03pm

Re:
Utility patent, I think. A design patent might actually help the trademark case.
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PrometheeFeu (profile), 2 Aug 2011 @ 12:07pm

Re: Re:
I read the judgement and it definitely brings up a design patent. The point you are making gets specifically addressed.
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Jay (profile), 2 Aug 2011 @ 12:17pm

Re: Re: Re: Re: Re:
Aren't they the ones asking?
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DCL, 2 Aug 2011 @ 12:28pm

Re:
I know that waxy toilet paper sucks.
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DCL, 2 Aug 2011 @ 12:48pm

Re: Re: Re: Re:
Wouldn't a 'cleaner' way be to simply print your brand logo or company name?

Personally I wouldn't recognize the difference between:

/\/\/\/\/\/\/\/\
\/\/\/\/\/\/\/\/
/\/\/\/\/\/\/\/\
\/\/\/\/\/\/\/\/
/\/\/\/\/\/\/\/\
\/\/\/\/\/\/\/\/
vs
/\|/|\/|\/|\/|\/
\/|\|/\|/\|/\|/\
/\|/|\/|\/|\/|\/
\/|\|/\|/\|/\|/\
/\|/|\/|\/|\/|\/
\/|\|/\| /\|/\|/\

Butt print "Cottonelle" or "Quilted Northern" and it is pretty obvious.

Maybe there should be flash cards with each pack so you can study the pattern/name correlation while you are sitting passing the time away.

hehehe... I typed "butt".
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The eejit (profile), 2 Aug 2011 @ 1:30pm

Re: Re: Re:
See, that's what amuses me. If he doesn't, the losing side will appeal, dragging it further through the courts, and wasting everyone's time and money.
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Any Mouse (profile), 2 Aug 2011 @ 1:43pm

Re: Re:
I recycled my Robert Jordan. It's got diamonds on it.
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The Mighty Buzzard (profile), 2 Aug 2011 @ 2:19pm

Re:
I don't do the TP buying at my house, so I couldn't tell you what brand it is. I can, however, tell the difference between the kind that leaves little bits of paper on the area of use and the kind that doesn't by the design.

That is purely a matter of function though. Like being able to tell the difference between an open end wrench that will easily slip off a nut and a box end that won't slip as easily. Good call from the judge.
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The Mighty Buzzard (profile), 2 Aug 2011 @ 2:22pm

Re: Re: Re: Re: Re: Re: Re:
It only costs us money when some a**hole feels they were rubbed the wrong way.

Damn, good one.
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The Mighty Buzzard (profile), 2 Aug 2011 @ 2:26pm

Re:
IP, TP... I don't see much of a difference.
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The Mighty Buzzard (profile), 2 Aug 2011 @ 2:34pm

Re: If the 675,000 pages are printed on toilet paper...
Around 61364 for me, assuming I don't eat any mexican food or get the flu during that time. Also assuming they're not counting front and back printed pages as two pages.
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Pixelation, 3 Aug 2011 @ 7:58am

Re: If the 675,000 pages are printed on toilet paper...
"how many dumps would it take for the judge to get through them all?"
That statement is awfully close to the Tootsie Pop commercial. You will be receiving a Cease and Desist letter shortly.
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btrussell (profile), 3 Aug 2011 @ 8:07am

Re: an oasis in the desert
"And such news of an amicable settlement having made this Court happier than a tick on a fat dog because it is otherwise busier than a one legged cat in a sand box and, quite frankly, would have rather jumped naked off of a twelve foot step ladder into a five gallon bucket of porcupines than have presided over a two week trial of the herein dispute, a trial which, no doubt, would have made the jury more confused than a hungry baby in a topless bar and made the parties and their attorneys madder than mosquitoes in a mannequin factory;"
.
.
.
Dated this 19 day of July, 2011.

MARTIN J. SHEEHAN Kenton Circuit Judge

http://www.wlwt.com/r/28739998/detail.html
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Anonymous Coward, 3 Aug 2011 @ 11:37am

Re: Re: Re: Re:
As usual, you have no idea what you're talking about.
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Anonymous Coward, 3 Aug 2011 @ 11:40am

Re: Re: Re: Re: Re: Re:
As I said (and Mike has acknowledged in changing the article title), NOBODY asked the judge to read all 675,000 pages produced in discovery.

Asking the judge (or, actually, the judge's clerk) to read 119 opinions and 20 statutes (or, actually, portions thereof) is in a whole different ballpark.
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Anonymous Coward, 3 Aug 2011 @ 11:45am

Re: Re: Re:
Yes, the court says that while a design patent might be evidence of nonfunctionality, it does not absolutely preclude a finding of nonfunctionality, and the fact that aspects of the claimed pattern are disclosed in a utility patent shows that the pattern is in fact functional.

Basically, you can't get trade dress protection for something claimed in a utility patent.
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Squirrel Brains (profile), 3 Aug 2011 @ 12:01pm

Re: Re: Re: Re: Re: Re: Re:
I realize that the judge an his clerks will no have to read all that. However, it is probably a good indicator of how the litigation is going to so. Those briefs and motions will probably be a pain to read.
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Lauriel (profile), 4 Aug 2011 @ 5:17pm

Confused
I'm having trouble understanding how this could even qualify for either patent or trademark? Surely using stitching in a basic geometric shape in a manner that has been around for centuries (hence: quilting) couldn't possibly qualify for either? Or am I confusing the law with common sense again?
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Anonymous Coward, 7 Aug 2011 @ 8:59am

Quilted Pattern on Quilts
I would if they will try to sue anyone using a diamond pattern on a quilt?
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