TRISTAR PRODUCTS INC. v. E. MISHAN & SONS INC.
OPINION FILED. Signed by Judge Renee Marie Bumb on 4/19/17. (js)
NOT FOR PUBLICATION
[Docket No. 5]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TRISTAR PRODUCTS, INC.,
Civil No. 17-1204 (RMB/JS)
E. MISHAN & SONS, INC.,
Edward P. Bakos, Esq.
Bakos & Kritzer
147 Columbia Turnpike
Florham Park, New Jersey 07932
Attorney for Plaintiff Tristar Products, Inc.
Dennis F. Gleason, Esq.
Jardim, Meisner & Susser, P.C.
30B Vreeland Road, Suite 201
Florham Park, New Jersey 07932
Angelo Notaro, Esq.
John Zaccaria, Esq.
Peter Bucci, Esq.
Notaro, Michalos & Zaccaria P.C.
100 Dutch Hill Road, Suite 240
Orangeburg, New York 10962
Attorneys for Defendant E. Mishan & Sons, Inc.
BUMB, United States District Judge:
This matter comes before the Court upon the Motion for a
Preliminary Injunction filed by Plaintiff Tristar Products, Inc.
(“Tristar” or the “Plaintiff”), seeking to enjoin Defendant
E. Mishan & Sons, Inc. (“Emson” or the “Defendant”) from selling
its Gotham Steel deep square pan [Docket No. 5].
On April 11,
2017, this Court held a hearing on Plaintiff’s motion.
reasons set forth below, Plaintiff’s motion is DENIED.
As alleged in the Complaint, 1 on February 7, 2017,
U.S. Patent No. D778,103 (the “’103 Patent”), entitled “Pan”,
issued to Keith Mirchandani and Mo-Tsan Tsai.
The ’103 Patent
was assigned to Tristar Products and KE M.O. House Co., Ltd. by
Mo-Tsan Tsai on May 23, 2016 and by Keith Mirchandani June 20,
2016, and duly recorded with the United States Patent and
Trademark Office (“USPTO”).
On February 14, 2017, U.S. Patent No. D778,664 (the
“’664 Patent”), entitled “Pan”, issued to Keith Mirchandani and
The ’664 Patent was assigned to Tristar and
KE M.O. House Co., Ltd. by Mo-Tsan Tsai on May 23, 2016 and by
Keith Mirchandani on June 20, 2016, and duly recorded with the
The ’664 Patent and ’103 Patent are collectively
referred to as the “Patents”.
The Patents protect the design of a pan for use in cooking.
Tristar utilizes the patented designs in its successful Copper
Chef square pan.
According to Tristar, the Copper Chef pan has
On the day of the hearing, Tristar filed an Amended
Complaint alleging infringement of an additional patent which is
not the subject of the within hearing.
been the subject of extensive promotion and has attained immense
success in the marketplace.
On February 21, 2017, Tristar filed the within lawsuit and
filed a motion for a temporary restraining order and a
preliminary injunction, preliminarily enjoining Emson from
marketing or selling its Gotham Steel pan.
alleges that, to the ordinary observer, the Gotham Steel square
pan appears substantially and confusingly similar to Tristar’s
Copper Chef product and patented design.
In addition, Tristar
alleges that Emson’s Gotham Steel square pan infringes Tristar’s
Copper Chef trade dress, including the shape and depth of the
pan as well as the pan’s retail packaging.
“[T]he standard for granting or denying a motion for a
preliminary injunction is not unique to patent law, and . . .
the standard of the regional circuit should apply.”
Labs. v. Sandoz, Inc., 544 F.3d 1341, 1367 (Fed. Cir. 2008).
A preliminary injunction is “an extraordinary remedy that may
only be awarded upon a clear showing that the plaintiff is
entitled to such relief.”
Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008).
“A plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.”
Id. at 20 (internal citations omitted); see also AstraZeneca LP
v. Apotex, Inc., 633 F.3d 1042, 1050 (Fed. Cir. 2010); Titan
Tire Corp. v. Case New Holland, Inc., 566 F.3d 1372, 1375-76
(Fed. Cir. 2009); Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700,
708 (3d Cir. 2004).
The Court addresses these factors in turn.
A. LIKELIHOOD OF SUCCESS ON THE MERITS
i. Patent Infringement Claims
In order to demonstrate a likelihood of success on the
merits of its patent infringement claims, Tristar must show
that, “in light of the presumptions and burdens that will inhere
at trial on the merits, (1) [Tristar] will likely prove that
[Emson] infringes its [Patents], and (2) [Tristar’s]
infringement claim will likely withstand [Emson’s] challenges to
the validity and enforceability of the [ ] patent[s].”
AstraZeneca LP v. Apotex, Inc., 623 F. Supp. 2d 579, 587 (D.N.J.
2009) (quoting Amazon.com, Inc. v. Barnesandnoble.com, Inc., 239
F.3d 1343, 1350 (Fed. Cir. 2001)); accord Oakley, Inc. v.
Sunglass Hut Int’l, 316 F.3d 1331, 1340 (Fed. Cir. 2003).
Stated differently, Tristar, as the patentee, “must
demonstrate that it will likely prove infringement of one or
more claims of the patents-in-suit, and that at least one of
those same allegedly infringed claims will also likely withstand
the validity challenges presented by the accused infringer.”
Amazon.com, 239 F.3d at 1351.
If Emson, the alleged infringer,
raises a substantial question as to infringement or validity,
i.e., “the alleged infringer asserts an infringement or
invalidity defense that the patentee has not shown lacks
substantial merit,” then the Court should not issue the
AstraZeneca LP, 633 F.3d at 1050
(citing Genentech, Inc. v. Novo Nordisk A/S, 108 F.3d 1361, 1364
(Fed. Cir. 1997)).
Tristar alleges that Emson will infringe the Patents by
marketing and selling its Gotham Steel product.
argues that it does not infringe the Patents and, in any event,
the Patents are invalid as either anticipated or obvious.
The ’664 Patent claims the design for a pan, as shown
Like the ’664 Patent, the ’103 Patent indicates that the
“elements depicted in broken lines in the various figures are
included for environmental purposes only, and form no part of
the claimed design.”
’103 Patent, p. 1.
A design patent is infringed if it embodies the patented
design or “any colorable imitation thereof.”
Inc. v. Swisa, Inc., 543 F.3d 665, 678 (Fed. Cir. 2008) (en
The test for design patent infringement is whether the
two designs appear “substantially the same” to the “ordinary
Tristar contends that the designs of the Patents and the
Gotham Steel pan are nearly identical.
To illustrate the point,
Plaintiff introduces the following side-by-side comparisons of
the patented designs and the Gotham Steel pan:
’103 Patent, Figs. 1, 4, 6; Gotham Steel pan.
[Docket No. 5-1].
Pl. Br. at 7
Pl. Br. at 2.
’664 Patent, Figs. 1, 4, 6; Gotham Steel pan.
Pl. Br. at 7-8.
Pl. Br. at 1.
Tellingly, however, Tristar does not include a
side-by-side comparison of the bottoms of the ’664 Patent pan
and the Gotham Steel pan.
Emson responds that it does not infringe either the ’664
Patent or the ’103 Patent.
First, as Emson correctly points
out, the ’664 Patent depicts a pan with a plain bottom.
Gotham Steel product, on the other hand, clearly has an
induction plate on its bottom.
Second, with respect to the
’103 Patent, the patented design shows an induction plate on the
bottom of the pan with a plain circle in the center, surrounded
by six rows of small circles, totaling 234, and the circles are
not diagonally aligned.
In contrast, the Gotham Steel product
has no plain center circle, and instead has eight rows of small
circles, totaling 217, which are diagonally aligned.
A proper design patent infringement analysis requires that
all of the ornamental features illustrated in the figures be
Contessa Food Prod., Inc. v. Conagra, Inc., 282
F.3d 1370, 1378, 1381 (Fed. Cir. 2002) abrogated on other
grounds by Egyptian Goddess, 543 F.3d 665.
Emson has correctly
pointed out all of the differences between its product and the
figures in both Patents.
Clearly, an ordinary observer would
not view the design of the Gotham Steel product to be the same
or a colorable imitation of the patented designs.
Plaintiff has failed to show a likelihood of success on its
Even assuming Tristar had made such a showing with respect
to infringement, Emson contends that the Patents are invalid
because they are either anticipated or obvious.
the Court next considers the validity of the ’664 Patent and the
Under 35 U.S.C. § 282, “‘a patent is presumed valid, and
this presumption exists at every stage of the litigation.’”
Sanofi-Synthelabo v. Apotex, 470 F.3d 1368, 1375 (Fed. Cir.
2006) (quoting Canon Computer Sys., Inc. v. Nu-Kote Int’l, Inc.,
134 F.3d 1085, 1088 (Fed. Cir. 1998)).
however, is not a substantive rule, but rather a procedural
device that serves to assign the burden of proof during
D.L. Auld Co. v. Chroma Graphics Corp., 714 F.2d
1144, 1147 n. 2 (Fed. Cir. 1983).
As Section 282 makes clear,
“[t]he burden of establishing invalidity of a patent or any
claim thereof shall rest on the party asserting such
35 U.S.C. § 282(a).
resisting a preliminary injunction, . . . one need not make out
a case of actual invalidity.
Vulnerability is the issue at the
preliminary injunction stage, while validity is the issue at
Amazon.com, 239 F.3d at 1359 (emphasis added).
other words, a defendant need not prove actual invalidity [at
the preliminary injunction stage].
On the contrary, a defendant
must put forth a substantial question of invalidity to show that
the claims at issue are vulnerable.”
Erico Int’l Corp. v. Vutec
Corp., 516 F.3d 1350, 1356 (Fed. Cir. 2008).
showing of a substantial question of invalidity requires less
proof than the clear and convincing evidence standard to show
Id. (citing Amazon.com, 239 F.3d at 1358).
Design patent anticipation “requires a showing that a
single prior art reference is ‘identical in all material
respects’ to the claimed invention.”
Door-Master Corp. v.
Yorktowne, Inc., 256 F.3d 1308, 1312 (Fed. Cir. 2001) (quoting
Hupp v. Siroflex of Am., Inc., 122 F.3d 1456, 1461 (Fed. Cir.
In other words, the two designs must be substantially
See id. at 1313 (applying design patent infringement
test set forth in Gorham Mfg. Co. v. White, 81 U.S. 511, 528
(1871), as the test for anticipation).
“Two designs are
substantially the same if their resemblance is deceptive to the
extent that it would induce an ordinary observer, giving such
attention as a purchaser usually gives, to purchase an article
having one design supposing it to be the other.”
Id. at 1313-14
(citing Gorham, 81 U.S. at 528).
Emson contends that the ’664 Patent is invalid as
anticipated by Chinese Design Patent 303401337 (“CN ’337”),
which issued on October 7, 2015 and was not considered by the
USPTO in the prosecution of the ’664 Patent.
Emson argues that CN ’337 contains four views that correspond to
Figures 3, 4, 6, and 7 of the ’664 Patent as shown by the
Def. Opp. Br. at 17-19 [Docket No. 19].
Tristar counters that CN ’337 does not anticipate because
the corners are substantially different and the design is more
This Court disagrees.
When viewed from the sides,
the sides of the CN ’337 pan extend upwardly and outwardly at a
small angle relative to its bottom, as do the sides of the pan
disclosed in the ’664 Patent.
In addition, the lower corners of
both designs are rounded.
Indeed, the Court has superimposed
Figure 6 of the ’664 Patent on to the image of the CN ’337
design and confirmed that the corners are rounded in
substantially the same shape, although the Court recognizes
there are slight variations.
The ratio of the width to the
height of the CN ’337 pan appears to be the same or
substantially the same as the width-to-height ratio shown in
Figures 3 and 4 of the ’664 Patent.
While the dark figures in
CN ’337 make it difficult to assess the similarities identified
by Emson from the top, the Court nonetheless finds that the
elements depicted in CN ’337 are substantially identical to the
design in the ’664 Patent and that any minor variations are
insufficient to change the overall effect.
Finally, the Court
does not agree that CN ’337 presents a “chunky” design
contrasted with ’664 Patent’s sleek design.
The figures at
page 3 of CN ’337, without the lid, also depict a sleek design.
As the design in CN ’337 and the design of the ’664 Patent
appear to be substantially the same with, at most, minor
variations, the Court finds that Defendant has raised a
substantial question as to whether the ’664 Patent is invalid as
Emson next argues that both the ’664 Patent and the ’103
Patent are invalid as obvious in light of the prior art.
Section 103(a), a “patent may not be obtained if the differences
between the subject matter sought to be patented and the prior
art are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having
ordinary skill in the art to which said subject matter
35 U.S.C. § 103(a).
In assessing the obviousness of
a patented invention, the Court should consider (1) the scope
and content of the prior art; (2) the level of ordinary skill in
the pertinent art; (3) the differences between the prior art and
the claims at issue; and (4) such secondary considerations as
commercial success, long felt but unsolved need, and the failure
Sciele Pharma Inc. v. Lupin Ltd., 684 F.3d 1253,
1259 (Fed. Cir. 2012) (citing Graham v. John Deere Co., 383 U.S.
1, 17-18 (1966)); see also KSR Int’l Co. v. Teleflex, Inc., 550
U.S. 398, 406 (2007).
As to the ’664 Patent, Emson cites several prior art
references that it contends render it invalid as obvious.
Court addresses each in turn.
First, Emson cites to the January
2015 Frieling USA, Inc. Catalog which displays a Woll square
casserole pan, item W1024NL:
Def. Opp. Br. at 21.
Emson contends that the Woll W1024NL product is a 4-inch
high, 9.5” x 9.5” square pan with two handles.
The body of the
Woll W1024NL pan has a shape identical in all material respects
to the body shape of the ’664 Patent’s design, except for a lip
that extends around the outside of the upper edge.
The sides of
the Woll W1024NL pan, like the sides of the ’664 Patent’s
design, extend upwardly and outwardly, at a small angle,
relative to the bottom of the pan.
The corners of the bottom of
the Woll W1024NL pan are rounded in substantially the same way
as in the ’664 Patent.
appear the same.
Additionally, the size, shape, and depth
As noted, however, the Woll W1024NL pan has a
slight outer lip along outside the periphery of the top edge of
Second, Emson relies upon the 2012 AMT Catalog that
discloses several square pans: E269 and E269GS.
that items E269 and E269GS each comprise a square pan body
having dimensions of 26 x 26 cm and a height of 9 cm.
of both the E269 and E269GS pans has a shape identical in all
material respects to the pan shown in the ’664 Patent.
sides of the pans extend upwardly and outwardly, at a small
angle, relative to the pan’s bottom, as do the sides of the pan
in the ’664 Patent.
Likewise, the corners of the bottoms of the
E269 and E269GS pans are rounded as in the ’664 Patent’s design.
A comparison of the E269GS pan, as disclosed in the AMT
Catalog, with Figure 1 of the ’664 Patent follows:
Def. Opp. Br. at 22.
The aspect ratio of the E269 and E269GS pans appear to be
substantially the same as the aspect ratio shown in the Figures
of the ’664 Patent.
The size, shape, and depth of the E269 and
E269GS pans and pan set forth in the ’664 Patent are
substantially the same, except for an outer lip that extends
along the periphery of the upper edge of the E269 and E269GS
In addition, item E267GS in the AMT Catalog is
substantially similar to item E269GS except that its height is
7 cm instead of 9 cm, demonstrating that variations in height of
the pan body are within the prior art known to ordinary
designers of pans.
Third, Emson relies upon Registered Community Design
No. 000368949-0001 (“RCD ’949”), which was registered on July 8,
The pan design disclosed in RCD ’949 has a square body
and rounded edges, which are substantially the same as the
design depicted in the ’664 Patent, as seen in the following
images from RCD ’949:
RCD ’949, Def. Ex. D [Docket No. 19-4].
The RCD ’949 design looks the same as the ’664 Patent’s
design in all material respects, except for a lip that extends
around the periphery of the upper edge.
Fourth, Emson cites Chinese Design Patent 301766853
(“CN ’853”), which was published on December 21, 2011, and
discloses a square pot.
Emson argues that the pot disclosed in
CN ’853, shown below, also has a square body, rounded edges, and
sides that slightly extend outward, which create an overall
appearance that is substantially the same as the design
disclosed in the ’664 Patent.
Certified Translation of CN ’853, Def. Ex. U [Docket No. 19-7].
Emson argues that the design characteristics of the
foregoing references, which Emson refers to as the primary prior
art references, create the same visual impression as the
’664 Patent’s design.
The Court agrees.
To an ordinary
observer of pans, the designs present the same visual impression
as the embodiment of Figures 1 through 7 of the ’664 Patent and,
as a whole, create a design that has the same overall visual
effect as that claimed by the ’664 Patent.
Emson also cites two secondary prior art references,
Chinese Design Patent 301060141 (“CN ’141”) and Registered
Community Design 001994369-0032 (“RCD ’369”).
CN ’141 and
RCD ’369 each teach a pan with a lipless, straight edge along
the top of the sides of the pan.
CN ’141 discloses a square pan
with a lipless straight upper edge, as well as lower rounded
corners and a width-to-height ratio similar to that of the
’664 Patent’s design.
Def. Opp. Br. at 24-25.
Similarly, RCD ’369 discloses a square
pan with rounded corners and a lipless straight upper edge.
Def. Opp. Br. at 25.
The Court agrees with Defendant that CN ’141 and RCD ’369
both suggest to a designer of ordinary skill in the art of pan
design that any one of the primary references, i.e. the Woll
W1024NL pan, the AMT E269GS, E269, or E267 pans, the RCD ’949
pan, or the CN ’853 pan, may be modified by substituting a
lipless straight edge to create a design that presents the same
visual impression as the embodiments of the ’664 Patent’s
The Court now turns to the ’103 Patent.
Emson also argues
that the ’103 Patent is invalid as obvious because of the same
prior art discussed above.
Specifically, the Woll W1024NL pan,
the AMT Catalog E269 and E269GS pans, RCD ’949, and CN ’853 have
design characteristics that are substantially identical to the
design disclosed in the ’103 Patent.
In addition, Emson points
to U.S. Design Patent D594271 (“D’271”), which issued on June
16, 2009 and includes a bottom with a central planar circle,
surrounded by a series of six concentric, circumferential-spaced
circles, all encircled by an outer ring or rings.
identifies U.S. Design Patent D696060 (“D’060”), which issued on
December 24, 2013.
The bottom of the pan disclosed in D’060
includes a center disc, seven circumferential rows of circles,
and two concentric outer rings.
The Court agrees that a comparison of Figure 7 of D’271 and
Figure 6 of D’060 demonstrates that these designs have the same
overall visual appearance as the ’103 Patent’s design.
Def. Opp. Br. at 28.
It would have been obvious to an ordinary designer of pans
to modify any one of the primary reference pans, i.e., the Woll
W1024NL pan, the AMT E269GS or E269, the RCD ’949 pan, or the
CN ’853 pan, by using the bottom disclosed in either D’060 or
D’271 to create a design that has the same overall visual
appearance as the ’103 Patent’s design.
Again, although these
references have a slight lip at top, the Court agrees with
Defendant that, in light of CN ’141 or RCD ’369, it would have
been obvious to an ordinary designer of pans to substitute a
lipless, straight edge as these patents teach.
For the reasons set forth above, the Court finds that
Defendant has raised at least a substantial question as to the
validity of both the ’664 and the ’103 Patents.
even assuming the Patents are valid, Plaintiff has not
demonstrated a likelihood of infringement of the Patents.
Accordingly, Plaintiff has not established a likelihood of
success on the merits of its patent infringement claims.
ii. Trade Dress Infringement Claims
Section 43(a) of the “The Lanham Act, 15 U.S.C. § 1125(a),
establishes a cause of action for trade dress infringement.”
McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d
350, 357 (3d Cir. 2007) (citing TrafFix Devices, Inc. v. Mktg.
Displays, Inc., 522 U.S. 23, 28-29 (2001)). 2
refers to the design or packaging of a product which serves to
identify the product’s source.”
Id. (quoting Shire US Inc. v.
Barr Labs., Inc., 329 F.3d 348, 353 (3d Cir. 2003)).
dress covers “the total image or overall appearance of a
product, and includes, but is not limited to, such features as
size, shape, color or color combinations, texture, graphics, or
even a particular sales technique.”
Id. (quoting Rose Art
“The federal law of unfair competition under § 43(a) is
not significantly different from the New Jersey law of unfair
competition.” Am. Greetings Corp. v. Dan-Dee Imports, Inc., 807
F.2d 1136, 1141 (3d Cir. 1986); accord Versa Prod. Co. v. Bifold
Co. (Mfg.), 50 F.3d 189, 216 n. 19 (3d Cir. 1995) (“New Jersey’s
common law and statutory prohibitions of unfair competition
. . . generally parallel the federal cause of action for unfair
competition under section 43(a) of the Lanham Act.”).
Accordingly, the Court addresses Plaintiff’s trade dress claims
under the Lanham Act and New Jersey law jointly.
Indus., Inc. v. Swanson, 235 F.3d 165, 171 (3d Cir. 2000)).
“The purpose of trade dress protection is to ‘secure the owner
of the trade dress the goodwill of his business and to protect
the ability of consumers to distinguish among competing
Id. (quoting Shire, 329 F.3d at 353).
To establish likelihood of success on the merits of its
trade dress claims, Plaintiff must demonstrate the following
(1) the allegedly infringing design is non-functional;
(2) the design is inherently distinctive or has acquired
secondary meaning; and
(3) consumers are likely to confuse the source of the
plaintiff’s product with that of the defendant’s
Id. (citing Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205,
“In addition to satisfying these three elements, it is the
plaintiff’s duty to ‘articulat[e] the specific elements which
comprise its distinct dress.’”
Fair Wind Sailing, Inc. v.
Dempster, 764 F.3d 303, 309 (3d Cir. 2014) (quoting Landscape
Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 381 (2d Cir.
1997); citing 1 J. Thomas McCarthy, McCarthy on Trademarks and
Unfair Competition § 8:3 (4th ed. 2014) (“[T]he discrete
elements which make up the [trade dress claim] should be
separated out and identified in a list.”)).
“[e]ven before it reaches the question of protectability, . . .
a district court should scrutinize a plaintiff’s description of
its trade dress to ensure itself that the plaintiff seeks
protection of visual elements of its business.”
As a preliminary matter, the Court finds that Plaintiff has
not established a likelihood of success on the merits of its
trade dress claims as it has not adequately articulated the
specific elements which comprise its trade dress.
opening brief, Plaintiff claims that its trade dress “includes
the size, shape and depth of the square pans (as shown above)
sold under the Copper Chef trademark.
The trade dress further
includes the design and features as depicted on the packaging of
the retail box.”
Pl. Br. at 2.
Plaintiff does not, however,
articulate any of these specific elements as comprising
Tristar’s distinct trade dress in its Complaint.
Complaint merely includes images of the Copper Chef pan and
baldly states that “[a]ll the features that make up the COPPER
CHEF trade dress are nonfunctional . . . .”
Comp. ¶ 11 [Docket
Moreover, the Complaint did not identify Copper Chef’s
retail packaging as comprising part of Plaintiff’s protected
As currently pled, Plaintiff’s allegations do not
adequately “articulate the specific elements which comprise its
See Fair Wind, 764 F.3d at 309 (dismissing
trade dress claim because plaintiff “failed to give Defendants
adequate notice of what overall look it wishes to protect.”).
Even assuming that Plaintiff’s articulation of the elements
of its alleged trade dress in its briefing and during the motion
hearing were sufficient, the Court finds that Plaintiff cannot
establish a likelihood of success on the merits of its trade
dress claims, for the reasons set forth below.
1. Inherent Distinctiveness
or Secondary Meaning
To succeed on a trade dress infringement claim, a plaintiff
must establish that its design is non-functional and that such
non-functional design is “inherently distinctive or has acquired
McNeil, 511 F.3d at 357. 3
“Courts have held
that a mark can be distinctive in one of two ways.
mark is inherently distinctive if ‘[its] intrinsic nature serves
to identify a particular source.’”
Wal-Mart Stores, 529 U.S. at
210 (quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763,
“Second, a mark has acquired distinctiveness, even
if it is not inherently distinctive, if it has developed
secondary meaning, which occurs when, ‘in the minds of the
public, the primary significance of a [mark] is to identify the
source of the product rather than the product itself.’”
As Defendant apparently does not dispute at this juncture
that Plaintiff’s trade dress is non-functional, for purposes of
this preliminary injunction motion, the Court assumes, without
making any findings, that Plaintiff has established the first
element of its trade dress claims.
at 211 (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S.
844, 851 n. 11 (1982)).
Additionally, the Supreme Court has distinguished between
two types of trade dress: product design and product packaging.
Id. at 212.
In Wal-Mart Stores, the Supreme Court explained
that “[i]n the case of product design, . . . we think consumer
predisposition to equate the feature with the source does not
exist” as “[c]onsumers are aware of the reality that, almost
invariably, even the most unusual of product designs--such as a
cocktail shaker shaped like a penguin--is intended not to
identify the source, but to render the product itself more
useful or more appealing.”
Id. at 213.
The Supreme Court
The fact that product design almost invariably serves
purposes other than source identification not only
renders inherent distinctiveness problematic; it also
renders application of an inherent-distinctiveness
principle more harmful to other consumer interests.
Consumers should not be deprived of the benefits of
competition with regard to the utilitarian and esthetic
purposes that product design ordinarily serves by a rule
of law that facilitates plausible threats of suit
against new entrants based upon alleged inherent
Based upon this reasoning, the Supreme Court held that, “in
an action for infringement of unregistered trade dress under
§ 43(a) of the Lanham Act, a product’s design is distinctive,
and therefore protectable, only upon a showing of secondary
Id. at 216.
As the Court noted above, a product’s trade dress has
acquired secondary meaning when “in the minds of the public, the
primary significance of the [trade dress] is to identify the
source of the product rather than the product itself.”
“[A] design or package which acquires this secondary
meaning, assuming other requisites are met, is a trade dress
which may not be used in a manner likely to cause confusion as
to the origin, sponsorship, or approval of the goods.”
532 U.S. at 28.
Secondary meaning may be established, for
example, “through extensive advertising which creates in the
minds of consumers an association between the mark and the
provider of the services advertised under the mark.”
Nat. Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d
432, 438 (3d Cir. 2000).
To guide courts in determining whether trade dress has
secondary meaning, the Third Circuit has set forth the following
list of non-exclusive factors:
(1) the extent of sales and advertising leading to
(2) length of use;
(3) exclusivity of use;
(4) the fact of copying;
(5) customer surveys;
(6) customer testimony;
(7) the use of the mark in trade journals;
(8) the size of the company;
(9) the number of sales;
(10) the number of customers; and
(11) actual confusion.
E.T. Browne Drug Co. v. Cococare Prod., Inc., 538 F.3d 185, 199
(3d Cir. 2008) (citing Commerce Nat. Ins., 214 F.3d at 438).
Plaintiff contends that both its product design and product
packaging comprise protectable trade dress.
At the preliminary
injunction hearing, Plaintiff identified the elements of its
trade dress as including the sleek aesthetic design of the
Copper Chef pan, its rectangular shape, its depth, which
Plaintiff claims is not normally associated with pans, and the
location and shape of its rivets.
Plaintiff also claims that
aspects of the Copper Chef pan’s packaging constitute trade
dress, including the inset images on the box.
counsel noted at the hearing, however, that Plaintiff was most
concerned with the trade dress of the actual product, rather
than its packaging.
Accordingly, to establish a likelihood of
success on the merits of its trade dress infringement claims,
Plaintiff must, among other things, demonstrate that the Copper
Chef product design has acquired secondary meaning and that its
packaging design is at least inherently distinctive.
Plaintiff argues that it has invested over $40 million in
advertising for the Copper Chef pan in the United States and
that its sales of the Copper Chef pan were over $100 million in
Mirchandani Decl. ¶ 4 [Docket No. 5-2]; Mirchandani Supp.
Decl. ¶ 5 [Docket No. 22-1].
Yet, Defendant has correctly
pointed out that “there is no evidence before this Court as to
what type of consumer recognition, if any, has resulted” from
Plaintiff’s investment in advertising.
Def. Opp. Br. at 6
(citing EMSL Analytical, Inc. v. Testamerica Analytical Testing
Corp., 2006 WL 892718, at *7 (D.N.J. Apr. 4, 2006) (finding that
“there has been no showing that those expenditures ($5.5 million
in advertising) created actual consumer recognition of
Without such proofs, the dollar amount of
Plaintiff’s advertising expenditures is not necessarily
probative of the strength of its marks.”).
There is no evidence
whatsoever in the record as to what Plaintiff’s $40 million
investment in advertising entailed or whether the advertising
focused on Plaintiff’s claimed trade dress, such that it
resulted in buyer recognition.
At this juncture, this factor
does not weigh in favor of a finding of secondary meaning.
The Court next considers the length of use.
It is unclear
how long Plaintiff’s Copper Chef pan has been on the market.
his Declaration, Keith Mirchandani, CEO of Tristar, stated that
the Copper Chef pan “launched in the United States in 2016” and
that “Tristar secured the rights to the Copper Chef square pan
via assignment from the inventors of the pan on June 20, 2016.”
Mirchandani Decl. ¶¶ 3-4.
In his Supplemental Declaration,
however, Mirchandani avers that Plaintiff “began marketing and
selling the Copper Chef square pan on November 14, 2015.”
Mirchandani Supp. Decl. ¶ 4.
Defendant began advertising the
Gotham Steel pan in August 2016.
Mishan Decl. ¶ 8 [Docket
Even assuming Plaintiff’s product launched in
November 2015, the length of use is relatively limited,
especially in light of the fact that Defendant’s product entered
the market at most only nine months later.
Indeed, the duration
of Plaintiff’s use coincides in large part with the length of
This factor indicates that Plaintiff’s trade
dress has not acquired secondary meaning.
Turning to exclusivity of use, as Defendant notes,
Plaintiff acknowledges that the Copper Chef pan is frequently
copied, resulting in non-exclusive use.
See Mirchandani Decl.
At the preliminary injunction hearing, Plaintiff
reiterated that it presently shares the square pan market with
Additionally, as noted above, Defendant’s
Gotham Steel pan entered the market only months after
Plaintiff’s Copper Chef pan launched.
As Plaintiff’s use has
not been exclusive, this factor also militates against a finding
of secondary meaning.
Moreover, as to the fourth factor, the
fact of copying, there is no evidence in the record that
Defendant intentionally copied Plaintiff’s trade dress.
It is a glaring omission that Plaintiff has presented no
evidence of customer surveys or customer testimony to support a
finding of secondary meaning.
Additionally, there is no
evidence of the use of Plaintiff’s trade dress in trade
Likewise, there is no evidence in the record of
As to the number of sales, Plaintiff’s CEO
stated that “Tristar’s Copper Chef pans were the number one
selling product in 2016 for Tristar with sales in excess of
Tristar expects this trend to continue in 2017
with sales in excess of $150 million.”
Mirchandani Supp. Decl.
There is no evidence in the record, however, regarding the
size of the company or the number of customers for Plaintiff’s
Copper Chef pan.
Having considered each of these factors, the Court finds
that the record before it does not support a finding that
Plaintiff’s Copper Chef product design trade dress has acquired
The Court next turns to Plaintiff’s purported packaging
Plaintiff has not identified what it believes is
inherently distinctive about its retail packaging.
More to the
point, Plaintiff has not established that any features of its
retail packaging are inherently distinctive or that any such
features have acquired secondary meaning.
opening brief merely avers that “[e]ven the packaging of the
Gotham Steel Square Pan mirrors the Copper Chef trade dress” and
includes the following side-by-side comparison of the retail
packaging, with no further elaboration:
Pl. Br. at 11.
This is wholly insufficient to establish that
Plaintiff’s retail packaging is inherently distinctive, let
alone that it has acquired secondary meaning, or that
Defendant’s retail packaging infringes Plaintiff’s trade dress.
For the foregoing reasons, the Court finds that Plaintiff
has not adequately demonstrated that its trade dress is
inherently distinctive or has acquired secondary meaning.
result, Plaintiff has not established that it is likely to
succeed on the merits of its trade dress claims.
2. Likelihood of Consumer Confusion
Finally, for the following reasons, the Court finds that
Plaintiff has not established likelihood of consumer confusion
and, therefore, cannot establish that it is likely to succeed on
the merits of its trade dress claims.
“A likelihood of
confusion exists when consumers viewing the defendant’s trade
dress probably would assume that the product it represents is
associated with the source of a different product identified by
the plaintiff’s similar trade dress.”
McNeil, 511 F.3d at 357
(citing A & H Sportswear, Inc. v. Victoria’s Secret Stores,
Inc., 237 F.3d 198, 211 (3d Cir. 2000)).
Put differently, “a
plaintiff may prevail in a trade dress infringement action only
if it shows that an appreciable number of ordinarily prudent
consumers of the type of product in question are likely to be
confused as the source of the goods.”
Versa, 50 F.3d at 200
This is because “[i]t is not unfair
competition for someone to trade off the good will of a product,
it is only unfair to deceive consumers as to the origin of one’s
goods and thereby trade off the good will of a prior producer.”
Id. at 207 (emphasis in original) (internal citations omitted).
The Third Circuit has directed district courts to employ
the factors set forth in Interpace Corp. v. Lapp, Inc., 721 F.2d
460 (3d Cir. 1983), in determining whether there is likelihood
The Lapp factors include:
(1) the degree of similarity between the plaintiff’s
trade dress and the allegedly infringing trade dress;
(2) the strength of the plaintiff’s trade dress;
(3) the price of the goods and other factors indicative
of the care and attention expected of consumers when
making a purchase;
(4) the length of time the defendant has used its trade
dress without evidence of actual confusion arising;
(5) the intent of the defendant in adopting its trade
(6) the evidence of actual confusion;
(7) whether the goods, though not competing,
marketed through the same channels of trade
advertised through the same media;
(8) the extent to which the targets of the parties’ sales
efforts are the same;
(9) the relationship of the goods in the minds
consumers because of the similarity of function;
(10) other facts suggesting that the consuming public
might expect the plaintiff to manufacture a product in
the defendant’s market, or that the plaintiff is likely
to expand into that market.
McNeil, 511 F.3d at 358 (citing Freedom Card, Inc. v. JPMorgan
Chase & Co., 432 F.3d 463, 471 (3d Cir. 2005)).
The Third Circuit has cautioned, however, that these
factors are “qualitative” and that “not all factors will be
relevant in all cases; further, the different factors may
properly be accorded different weights depending on the
particular factual setting.”
That being said, “the single
most important factor in determining likelihood of confusion is
trade dress similarity.”
Id. at 359.
“The proper test is not
side-by-side comparison but whether the trade dresses create the
same overall impression when viewed separately.
buyers typically see the two products side-by-side, as is true
in this case, then a side-by-side comparison may be
The Court addresses the factors relevant to the case at
The Court begins with the most important factor, the
degree of similarity between Plaintiff’s trade dress and
Defendant’s allegedly infringing trade dress.
products are square pans, there are numerous obvious
Copper Chef Pan
Gotham Steel Pan
Compl. ¶¶ 9-10.
As is readily apparent, the exteriors of the Copper Chef
pan and the Gotham Steel pan are different colors.
of the Copper Chef pan is copper, while the exterior of the
Gotham Steel pan is grey.
Additionally, the handles of the
Gotham Steel pan are flat, whereas the handles of the Copper
Chef pan are tubular.
Moreover, the bottoms of the two pans are
The bottom of the Copper Chef pan contains a plain
circular disc at its center, surrounded by several small
The Gotham Steel pan, on the other hand, has only
several small diagonally-aligned circles, but it does not have a
plain center circle.
Importantly, Defendant’s product obviously
identifies its brand name, Gotham Steel, on the handles of the
Gotham Steel pan and on each side of the retail box, greatly
diminishing any potential confusion as to the source of the
See Versa, 50 F.3d at 203 (“[C]larity of labeling in
packaging and advertising will suffice to preclude almost all
possibility of consumer confusion as to source stemming from the
As to the retail packaging, the Court finds that the
parties’ packaging designs are starkly different:
Pl. Br. at 3.
The color schemes employed by the parties are distinct and
Plaintiff’s retail packaging uses
primarily yellow and copper colors, while Defendant’s packaging
is largely red and black.
Defendant’s packaging also uses text
and images that are different from Plaintiff’s packaging.
Finally, Defendant’s packaging includes information in both
English and French, unlike Plaintiff’s packaging, which is
exclusively in English.
The low degree of similarity suggests that consumer
confusion is unlikely.
Furthermore, the Court notes that there
is no evidence in the record of actual confusion.
the factors addressing the length of time Defendant has used its
trade dress without evidence of actual confusion arising and the
evidence of actual confusion also militate against a finding of
likelihood of consumer confusion.
The Court next considers the strength of Plaintiff’s trade
“‘[S]trength’ of product configuration as relevant to
determining likelihood of confusion on the part of ordinarily
careful consumers should be found only if consumers rely on the
product’s configuration to identify the producer of the good.”
Versa, 50 F.3d at 203.
As Defendant argues, “[t]here is no
evidence in the record that consumers purchase Tristar’s or
Emson’s square pans because their appearance identifies the
source or whether the purchases are motivated by other factors,
such as pleasing design, price, or convenient availability at a
Def. Opp. Br. at 12-13; see also
Buzz Bee Toys, Inc. v. Swimways Corp., 20 F. Supp. 3d 483, 507
At this juncture, Plaintiff has not established
that the strength of its trade dress supports a finding of
likelihood of confusion.
Next, the Court finds that the price of the goods suggests
that consumers would take at least some care when making a
“The greater the care and attention, the less the
likelihood of confusion.”
Versa, 50 F.3d at 204.
pans are sold for prices between approximately $40.00 and
The parties’ pans are not inexpensive or disposable
Additionally, as Plaintiff recognizes, consumers only
need one square pan, See Mirchandani Supp. Decl. ¶ 13,
suggesting that consumers would deliberate and consider their
options before making such a purchase.
The price of the pans
and the importance of the items suggest that consumers would
exercise some care and attention in their selection.
Brands, LLC v. Patel Shah Indian Grocery, 331 F. App’x 975, 982
(3d Cir. 2009) (“Inexpensive goods require consumers to exercise
less care in their selection than expensive ones.
important the use of the product, the more care that must be
exercised in its selection.”); Versa, 50 F.3d at 203 (“except
where consumers ordinarily exercise virtually no care in
selecting a particular type of product (as may be the case with
inexpensive disposable or consumable items, clarity of labeling
in packaging and advertising will suffice to preclude almost all
possibility of consumer confusion as to source stemming from the
This factor undercuts the
likelihood of consumer confusion.
The Copper Chef pan and the Gotham Steel pan, however, are
direct competitors in the same market.
They are sold in similar
stores, marketed to similar audiences via similar means, and
serve similar functions.
Thus, the factors addressing the
similarity of the channels of trade, target consumers, similar
functions, and other facts suggesting that the consuming public
might expect the plaintiff to manufacture a product in the
defendant’s market, or that the plaintiff is likely to expand
into that market suggest the possibility of consumer confusion.
The Court also considers Defendant’s intent in adopting its
The Third Circuit has held that “a defendant’s
intent to confuse or deceive consumers as to the product’s
source may be highly probative of likelihood of confusion.”
Versa, 50 F.3d at 205.
Plaintiff has presented no competent
evidence that Defendant adopted its trade dress with the intent
to infringe Plaintiff’s trade dress or to confuse or deceive
consumers as to the source of its pans.
Rather, as the Court
previously noted, Defendant clearly identified the source of its
product by conspicuously marking its product and its retail
packaging with “Gotham Steel”.
This factor weighs against a
finding of likely confusion.
Having weighed the various Lapp factors and based upon the
evidentiary record presently before it, the Court finds that
consumer confusion between the Copper Chef pan and the Gotham
Steel pan is unlikely.
Thus, for this additional reason, the
Court finds that Plaintiff has not established a likelihood of
success on the merits of its trade dress claims.
B. IRREPARABLE HARM
To establish irreparable harm, a plaintiff must allege an
injury that is “actual and imminent, not merely speculative.”
Macchione v. Coordinator Adm’r in Washington, D.C., 591 F. App’x
48, 49 (3d Cir. 2014).
“[A] showing of irreparable harm is
insufficient if the harm will occur only in the indefinite
Rather, the moving party must make a clear showing of
immediate irreparable harm.”
Id. at 49-50 (quoting Campbell
Soup Co. v. ConAgra, Inc., 977 F.2d 96, 91 (3d Cir. 1992))
(emphasis in original).
“As the Supreme Court has pointed out,
a party seeking injunctive relief must make ‘a clear showing’
that it is at risk of irreparable harm, which entails showing ‘a
likelihood of substantial and immediate irreparable harm.’”
Apple, Inc. v. Samsung Elecs. Co., 678 F.3d 1314, 1324 (Fed.
Cir. 2012) (quoting Winter, 555 U.S. at 22; O’Shea v. Littleton,
414 U.S. 488, 502 (1974)) (affirming district court’s denial of
preliminary injunction based on plaintiff’s failure to establish
Moreover, “[t]he possibility that adequate
compensatory or other corrective relief will be available at a
later date, in the ordinary course of litigation, weighs heavily
against a claim of irreparable harm.”
In re Revel AC, Inc., 802
F.3d 558, 571 (3d Cir. 2015) (quoting Sampson v. Murray, 415
U.S. 61, 90 (1974)).
Plaintiff argues that it will suffer irreparable harm
without a preliminary injunction in the form of “trespass on
exclusive rights, competition leading to price erosion,
tarnishing the market with poor quality product, loss of
customer and retailer goodwill, and damage to Tristar’s
reputation as an innovator.”
Pl. Br. at 11.
Yet Plaintiff has
presented little more than attorney argument to support its
claims of irreparable harm. 4
While “[p]rice erosion, loss of good will, damage to
reputation, and loss of business opportunities are all valid
grounds for finding irreparable harm,” Celsis In Vitro, Inc. v.
CellzDirect, Inc., 664 F.3d 922, 930 (Fed. Cir. 2012) (citing
Abbott, 544 F.3d at 1362; Sanofi-Synthelabo v. Apotex, Inc.,
As Defendant correctly noted, Plaintiff’s counsel’s
arguments do not constitute competent evidence under the Federal
Rules of Evidence.
470 F.3d 1368, 1382-83 (Fed Cir. 2006)), Plaintiff has presented
no evidence to substantiate any likelihood of substantial and
immediate irreparable harm.
For example, there is no competent
evidence in the record that supports Plaintiff’s claim that
Defendant’s product is of poor quality or that Plaintiff’s
reputation or goodwill has been tarnished. 5
Plaintiff expressed concerns that it would be shut out of
certain retail outlets that did not want to carry two competing
See Mirchandani Supp. Decl. ¶ 11.
Yet, at the
motion hearing, Plaintiff established that this concern did not
materialize and that the retailer continued to carry both the
Copper Chef square pan and the Gotham Steel square pan.
Moreover, as Plaintiff has not established a likelihood of
success on the merits of its patent and trade dress infringement
claims, Plaintiff has not established that it is likely to
suffer irreparable harm in the form of trespass on its exclusive
In any case, “[a] mere showing that [Plaintiff] might
lose some insubstantial market share as a result of
[Defendant’s] infringement is not enough” to make a clear
showing of likely irreparable harm.
Apple, 678 F.3d at 1324-25.
Even assuming that Defendant’s product is of inferior
quality, as Plaintiff baldly asserts, it would seem to the Court
that any difference in quality would justify the price
difference between the parties’ respective products and would
likely result in dissatisfied Gotham Steel customers returning
to Copper Chef.
Additionally, to establish a likelihood of irreparable harm
in the context of patent infringement, a “patentee must also
establish that the harm is sufficiently related to the
Apple, Inc. v. Samsung Elecs. Co., 695 F.3d
1370, 1373 (Fed. Cir. 2012).
In other words, Plaintiff must
show a causal nexus between Defendant’s alleged infringement and
the alleged irreparable harm.
Apple, 678 F.3d at 1324.
Plaintiff has not even attempted to make such a showing.
Plaintiff’s CEO avers in his Supplemental Declaration that
“[e]very sale of Emson’s Gotham Steel square pan is a lost sale
for Tristar’s Copper Chef, because retail consumers do not need
(and do not have the kitchen space for) a second square pan.”
Mirchandani Supp. Decl. ¶ 13.
He also states that Plaintiff
“experienced a significant drop in sales from Amazon and a very
rapid and substantial increase in its advertising costs” in
Id. ¶ 14.
In his opening Declaration, Mirchandani
also explained that, as a result of Defendant’s decision to sell
its product at $40.00 per pan, “Tristar has lowered its
suggested list price to $59.99 [from $74.99] in an attempt to
compete to avoid losing sales and market share.”
Decl. ¶ 13.
To the extent Mirchandani’s statements may support a
finding of price erosion, lost sales, customers, and/or revenue,
Plaintiff has not demonstrated that these harms could not be
compensated with a monetary damages award.
preliminary injunction hearing, the Court conducted a colloquy
with Plaintiff’s counsel regarding the adequacy of monetary
Counsel recognized that, although monetary damages
could be difficult to calculate, in the event a preliminary
injunction was improperly denied, Plaintiff may be entitled to
recover both Defendant’s profits and its own lost profits.
In light of the paucity of competent evidence in the record
to support Plaintiff’s claims of irreparable harm and the
adequacy of monetary damages at a later date in the unlikely
event Plaintiff prevails, the Court finds that Plaintiff has not
made a clear showing that it is likely to suffer irreparable
harm absent preliminary injunctive relief.
C. BALANCE OF EQUITIES
As to the balance of equities, both parties submit that the
equities tip in their favor as they will each be harmed if the
preliminary injunction issues, in the case of Defendant, or if
the preliminary injunction does not issue, in the case of
One party may lose sales, customers, and/or revenue
regardless of how this Court rules.
In light of this Court’s
rulings on the likelihood of success on the merits, the Court
finds the equities and hardships to be in equipoise at this
The balance of equities factor neither weighs in
favor nor against the issuance of a preliminary injunction.
D. PUBLIC INTEREST
“The public interest, of course, favors the maintenance of
a well-functioning patent system.
But the ‘public’ also has a
‘paramount interest in seeing that patent monopolies . . . are
kept within their legitimate scope.’”
Medtronic, Inc. v.
Mirowski Family Ventures, LLC, 134 S. Ct. 843, 851 (2014)
(quoting Precision Instrument Mfg. Co. v. Automotive Maintenance
Machinery Co., 324 U.S. 806, 816 (1945)).
“[a]lthough the public interest inquiry is not necessarily or
always bound to the likelihood of success on the merits, . . .
absent any other relevant concerns, . . . the public is best
served by enforcing patents that are likely valid and
Abbott Labs. v. Andrx Pharm., Inc., 452 F.3d 1331,
1348 (Fed. Cir. 2006).
The public interest, however, is also
benefited by “lower prices resulting from free market
Canon, Inc. v. GCC Int’l Ltd., 263 F. App’x 57,
62 (Fed. Cir. 2008).
Additionally, the Third Circuit has explained that “the
most basic public interest at stake in all Lanham Act cases [is]
the interest in prevention of confusion, particularly as it
affects the public interest in truth and accuracy.”
369 F.3d at 730.
In the trade dress context, however, there is
also a public interest in enhancing competition in the market.
See Keene Corp. v. Paraflex Indus., Inc., 653 F.2d 822, 827
(3d Cir. 1981); see also Wal-Mart, 529 U.S. at 213 (“[c]onsumers
should not be deprived of the benefits of competition . . . by a
rule of law that facilitates plausible threats of suit against
new entrants based upon alleged inherent distinctiveness.”).
As Plaintiff has not made a clear showing of likelihood of
success on the merits of its patent infringement claims, the
public interest in enforcing valid and infringed patents would
not be served by a preliminary injunction.
Plaintiff has not established a likelihood of success on the
merits of its trade dress infringement claims and, importantly,
has not established a likelihood of consumer confusion, the
public interest in preventing confusion and deception is not
furthered by a preliminary injunction.
Indeed, the denial of a
preliminary injunction would better serve the public interest by
promoting free competition in the market of deep square pots.
Accordingly, the Court finds that the public interest does not
weigh in favor of the issuance of a preliminary injunction.
For the reasons set forth above, Plaintiff’s Motion for a
Preliminary Injunction is DENIED.
An appropriate Order shall
issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: April 19, 2017
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