## Facts

- Dippin’ Dots, Inc. sold a brightly colored, flash-frozen ice cream product made up of small free-flowing beads, typically sold from kiosks in venues such as amusement parks and malls.
- Dippin’ Dots was the exclusive licensee of a patent covering a multi-step process that formed beads by dripping an ice-cream mixture into a freezing chamber and required low-temperature storage and serving to keep the beads free-flowing.
- Frosty Bites Distribution, LLC sold a competing flash-frozen ice cream product consisting mostly of small popcorn-shaped pieces and some spherical pieces, produced by streaming/dripping ice cream into liquid nitrogen and mechanically breaking clusters into smaller pieces.
- Dippin’ Dots claimed protectable trade dress in (a) the product configuration (the small, brightly colored flash-frozen beads/pieces) and (b) its logo (colored spheres surrounding the “dippin’ dots” name and a tagline), alleging infringement under Lanham Act § 43(a), 15 U.S.C. § 1125(a).
- The district court granted summary judgment to Frosty Bites on both claims, finding the product design functional and finding no triable likelihood of confusion as to the logos.

## Issues

1. Whether the claimed product-configuration trade dress for brightly colored flash-frozen ice cream beads/pieces was functional and therefore barred from protection under Lanham Act § 43(a).
2. Whether the evidence could support a finding that Frosty Bites’ logo created a likelihood of confusion with Dippin’ Dots’ logo sufficient to defeat summary judgment.

## Decision

- The Eleventh Circuit affirmed summary judgment for Frosty Bites on the product-configuration claim.
- The court held the claimed product design was functional, including because key attributes flowed from the patented process and because protecting the configuration would disadvantage competitors for reasons unrelated to source identification.
- The Eleventh Circuit affirmed summary judgment for Frosty Bites on the logo claim.
- The court held that, viewing the record in Dippin’ Dots’ favor, no reasonable jury could find a likelihood of confusion given the overall differences in wording and visual impression and the common, weak nature of shared design elements in the market.

## Legal Principles

- Trade dress protection under Lanham Act § 43(a) does not extend to functional product features; functionality bars protection even if the design has source-identifying associations.
- A product feature is functional if it is essential to the article’s use or purpose, affects cost or quality, or would place competitors at a significant non-reputation-related disadvantage if monopolized through trade dress.
- A utility patent and its disclosures are strong evidence that related product characteristics are functional and may not be recaptured through trade dress.
- Likelihood of confusion for logo trade dress turns on the overall commercial impression; shared use of common or descriptive decorative elements generally supports only narrow protection absent stronger distinctiveness or closer similarity.

## Conclusion

The Eleventh Circuit held that Dippin’ Dots could not use trade dress law to control a functional flash-frozen ice-cream product configuration closely tied to a patented process, and it further held that differences between the parties’ logos defeated any triable claim of consumer confusion.


Dippin’ Dots, Inc. v. Frosty Bites Distrib., LLC, 369 F.3d 1197 (11th Cir. 2004)