Whether the Seventh Circuit departed from TrafFix in its trade dress functionality analysis

QUESTIONS PRESENTED This is a trade dress case. The Seventh Circuit affirmed the decision of the District Court that Plaintiff Appellee Bodum USA, Inc. owned a trade dress in the design of the “Chambord” French press coffee maker. The District Court found that Bodum had satisfied its burden of proof that the Chambord design was not functional as required by this Court’s decision in TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23 (2001). The Seventh Circuit agreed, deciding that the materials used to manufacture the Chambord product did not confer a cost or quality advantage. In Apple Inc. v. Samsung Elecs. Co., Lid., 786 F.3d 983 (Fed. Cir. 2015), rev'd and remanded on other grounds, 137 S. Ct. 429, 196 L. Ed. 2d 363 (2016) the Federal Circuit applying Ninth Circuit law rejected Apple’s argument that the cost of materials used to create a durable iPhone affected the cost of the design: “For the design elements that comprise Apple’s unregistered trade dress, Apple points to no evidence in the record to show they were not relatively simple or inexpensive to manufacture.” 786 F.3d 983, 992. The Seventh Circuit’s decision departs from this Court’s decision in TrafFix. Furthermore, the decision has created a conflict between the decisions of the Seventh Circuit and the Federal Circuit (applying the law of the Ninth Circuit) on Plaintiff’s burden under TrafFix to show that the design does not “affect the cost or quality of the device.” The questions presented are: 1. Did the Seventh Circuit depart from this Court’s holding in TrafFix when it decided that a trade dress does not confer a cost advantage based solely upon proof of the relatively high overall cost of the product manufactured with expensive materials, rather than u upon proof that the design was not the simplest or least expensive to produce? 2. Does the Seventh Circuit’s decision, that the cost of expensive materials used in manufacture of a trade dress are not relevant to Plaintiff’s burden to prove that the trade dress is not the simplest or least expensive to manufacture, conflict with the Federal Circuit’s decision applying Ninth Circuit law in Apple?