## Facts

- Blue Mountain produced and sold two greeting-card lines, “AireBrush Feelings” (since 1981) and “WaterColor Feelings” (since 1983), featuring non-occasion emotional relationship messages placed over watercolor or airbrush nature-themed artwork.
- Hallmark introduced its “Personal Touch” line in 1986, also consisting of emotionally expressive, relationship-oriented messages with similar visual presentation.
- Blue Mountain alleged Hallmark copied Blue Mountain’s product presentation and sued under Lanham Act § 43(a) for unregistered trade dress infringement, plus related unfair competition and copyright claims.
- The district court found Blue Mountain was a leading producer in this niche and that Hallmark designed its new line to compete in the same market.
- The district court identified roughly ten recurring features that, in combination, created a distinctive overall appearance associated by consumers with a single source.
- Blue Mountain offered evidence of many alternative greeting-card designs used by other competitors, suggesting Hallmark could compete without adopting a similar overall appearance.

## Issues

1. Whether Blue Mountain’s greeting-card trade dress was protectable under Lanham Act § 43(a) because it was distinctive and nonfunctional.
2. Whether Hallmark’s “Personal Touch” cards created a likelihood of consumer confusion with Blue Mountain’s card lines.
3. Whether the district court abused its discretion in granting a preliminary injunction based on the traditional equitable factors.

## Decision

- The Tenth Circuit affirmed the district court’s preliminary injunction barring manufacture and marketing of 83 specified Hallmark cards.
- The court held the district court permissibly found Blue Mountain’s trade dress sufficiently distinctive and nonfunctional for § 43(a) protection at the preliminary-relief stage.
- The court held the district court did not clearly err in finding a likelihood of confusion between the competing card lines.
- The court held the district court did not abuse its discretion in concluding the preliminary-injunction factors favored Blue Mountain.

## Legal Principles

- Unregistered trade dress is actionable under Lanham Act § 43(a) when the overall appearance functions to identify source and is sufficiently distinctive (including by inherent distinctiveness) and nonfunctional.
- Trade dress may consist of a combination of design and presentation elements that create a distinctive overall commercial impression.
- Nonfunctionality is supported where competitors have ample alternative design options and restricting copying would not impose a meaningful competitive disadvantage.
- Likelihood of confusion may be inferred from similarity of overall appearance, market proximity, strength of the asserted trade dress, and evidence suggesting intentional adoption of a similar presentation.
- Appellate review of a preliminary injunction is for abuse of discretion, with factual findings reviewed for clear error.

## Conclusion

The Tenth Circuit upheld preliminary injunctive relief protecting a greeting-card producer’s unregistered trade dress where the record supported findings that the overall look of the card lines was distinctive, nonfunctional, and likely to be confused with a competitor’s similar product presentation.


Hartford House, Ltd. v. Hallmark Cards, Inc., 846 F.2d 1268 (10th Cir. 1988)