## Facts

- Foamation manufactured and sold novelty polyurethane-foam “cheese wedge” hats marketed as “cheesehead” hats.
- Wedeward Enterprises and related defendants participated in designing, manufacturing, and/or marketing competing “cheese top” foam hats.
- Foamation sued for, among other theories, federal unfair competition under Lanham Act § 43(a) based on alleged protectable trade dress in the cheese-wedge hat’s product configuration.
- Defendants denied infringement and asserted counterclaims alleging, in part, that Foamation lacked valid exclusive rights and wrongfully asserted infringement to defendants’ customers and prospective customers.
- The case reached the summary-judgment stage on the Lanham Act trade-dress/unfair-competition theory focused on whether the hat’s configuration functioned as a source-identifier.

## Issues

1. Whether the cheese-wedge hat’s product configuration qualified as protectable trade dress under Lanham Act § 43(a) by virtue of acquired secondary meaning.
2. Whether evidence of popularity and cultural association with Wisconsin and sports fandom sufficed to show that consumers primarily associated the configuration with Foamation as the source.
3. What effect the absence of protectable configuration trade dress had on Foamation’s federal unfair-competition theory and related counterclaim theories premised on Foamation’s asserted exclusivity.

## Decision

- The court granted summary judgment for defendants on Foamation’s Lanham Act § 43(a) trade-dress/unfair-competition claim to the extent it depended on protectable trade dress in the cheese-wedge configuration.
- The court held Foamation failed to produce sufficient evidence that the product configuration had acquired secondary meaning identifying Foamation as the source.
- The court treated cultural notoriety of the “cheesehead” symbol and strong demand as insufficient, without proof of source-identification in consumer perception.
- Remaining claims and counterclaims not resolved by the trade-dress ruling were left for further proceedings.

## Legal Principles

- Product-configuration trade dress is protectable under Lanham Act § 43(a) only if it is nonfunctional and has acquired secondary meaning.
- Secondary meaning requires that consumers primarily perceive the design as identifying a single commercial source, not merely as an attractive product design, ornament, or cultural symbol.
- Popularity, visibility, and high demand may be relevant but must be tied to consumer perception of source, commonly through survey evidence or comparable proof.
- Trade-dress law protects symbols that identify product source; it does not grant exclusivity over a product configuration solely because it is well-known or culturally associated with a region or team.

## Conclusion

The court ruled that Foamation’s cheese-wedge hat configuration did not receive Lanham Act trade-dress protection on the summary-judgment record because Foamation did not show secondary meaning linking the configuration to Foamation as the source, narrowing the federal unfair-competition dispute to non-trade-dress theories remaining in the case.


Foamation, Inc. v. Wedeward Enters., Inc., 970 F. Supp. 676 (E.D. Wis. 1997)