Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—EDMi: Trade Dress Misrepresentation Claims Under Consumer Protection Act Were Preempted by Copyright Act, (May 3, 2013)

By Jody Coultas, J.D.

RSR Sales, Inc. could not state a Michigan Consumer Protection Act (CPA) claim against Lowe’s Companies, Inc. for allegedly selling products that were substantially similar to RSR’s products because the claims were preempted by the Copyright Act, according to the federal district court in Detroit (RSR Sales, Inc. v. Lowe’s Companies, Inc., May 2, 2013, Drain, G.).

RSR designs and imports home and garden products, and owned a federally registered copyright for its gazing globes featuring a decorative swirl pattern. Lowe’s allegedly sold a "garden treasures" gazing ball, which closely resembled RSR’s gazing globes, leading RSR to file the CPA claim. Lowe’s argued that the CPA claim was preempted by the Copyright Act.

State laws are preempted if the work at issue is within the scope of the subject matter of copyright and the rights granted under state law are equivalent to any exclusive rights within the scope of federal copyright.

The grazing globes were within the subject matter of copyright, according to the court. RSR’s claim was based on the reproduction of its gazing globe, a tangible medium that includes "pictorial, graphic, and sculptural works."

RSR’s CPA claim was preempted by the Copyright Act, according to the court. The basis of the CPA claim was that Lowe’s caused confusion over the source of the gazing balls. Although RSR avoided using the word "copy," the claim was based on copying. The alleged confusion and misrepresentation arose from copying RSR’s gazing globe. RSR argued the CPA claim was distinctive because it emphasized trade dress and the confusion resulting from the wrongful use of its trade dress. However, the allegations did not change the fact that no additional element was required to satisfy the CPA.

The case is No. 12-10719.

Attorneys: Angela L. Jackson (Hooper Hathaway, P.C.) for RSR Sales, Inc. Alan N. Harris (Bodman PLC) for Lowe’s Companies, Inc.

Companies: RSR Sales, Inc.; Lowe’s Companies, Inc.

Cases: StateUnfairTradePractices MichiganNews