## Facts

- Georgia Lee Miller Roulo created the “Feeling Sensitive” (FS) line of single-faced greeting cards featuring a consistent visual presentation (beige background, brown handwritten script, sentimental verses often using ellipses, and a distinctive border/foil configuration).
- Roulo entered a two-year agreement under which Russ Berrie & Co. exclusively manufactured and distributed FS cards while Roulo retained copyright and trade dress rights and received royalties.
- After Roulo indicated she would not renew, Berrie developed a replacement line, “Touching You” (TY), and sold it through the same retail channels and similar rotating rack displays used for FS.
- TY cards shared multiple features with FS (single-sided format, brown cursive messages, similar verse style, same price point), with some alterations in background color and border/foil details.
- Roulo obtained federal copyright registrations covering FS cards and a rack header featuring her likeness and claimed protectable trade dress in the overall appearance of the FS cards and display.
- Roulo sued alleging copyright infringement under the Copyright Act and trade dress infringement/false designation of origin under the Lanham Act.
- A bifurcated jury trial resulted in findings for Roulo on both claims and a $4.3 million award based on Berrie’s profits from the TY line; the district court denied Roulo attorney’s fees.

## Issues

1. Whether the evidence supported the jury’s findings of copyright infringement and trade dress infringement, including likelihood of confusion.
2. Whether awarding Berrie’s profits as damages was proper, including the treatment of deductible expenses and apportionment.
3. Whether alleged evidentiary and jury-instruction errors required reversal or a new trial.
4. Whether the denial of attorney’s fees was an abuse of discretion.

## Decision

- Affirmed the judgment for Roulo on copyright and Lanham Act trade dress liability.
- Affirmed the $4.3 million profits-based damages award.
- Found no reversible error in the challenged evidentiary rulings or jury instructions.
- Affirmed the denial of attorney’s fees.

## Legal Principles

- Copyright infringement may be proven by ownership plus copying, where copying can be inferred from access and substantial similarity of protectable expression.
- A jury may find substantial similarity based on the “overall concept and feel” of works; commonplace elements are not protected individually, but an original selection and arrangement can be protected.
- Trade dress protection requires distinctiveness (including secondary meaning when applicable), non-functionality, and likelihood of confusion as to source, sponsorship, or affiliation.
- Consistent product appearance and marketing can support a finding that trade dress identifies source, and selling similar-looking products through the same outlets and similar displays can support likelihood of confusion.
- Overlapping copyright and trade dress theories may coexist when each claim satisfies its statutory elements (copyright protects expression; the Lanham Act targets consumer confusion).
- For profits-based recovery, once the plaintiff shows the defendant’s gross revenues, the defendant bears the burden to prove deductible expenses and to support apportionment; failure to provide reliable proof can justify awarding all profits.
- Attorney’s fees determinations are discretionary; denial is reviewed for abuse of discretion.

## Conclusion

The Seventh Circuit upheld a jury verdict finding that a distributor’s replacement greeting-card line infringed both copyrighted expression and protectable trade dress, sustained a profits award where the infringer failed to prove deductions or apportionment, and affirmed the trial court’s discretionary denial of attorney’s fees.


Roulo v. Russ Berrie & Co., 886 F.2d 931 (7th Cir. 1989)