Hillside Plastics, Inc. v. Dominion & Grimm USA, Inc. et al. (17-cv-30037).

Hillside owns a trademark registration for the design of its 201cSugarhill Jug 201d plastic maple syrup jugs, and accuses Dominion of violating that trade dress. Dominion moved for judgment on the pleadings, on the grounds that the trade dress was invalid as functional.
The trademark application had, in fact, initially been refused because of functionality concerns, but Hillside was able to overcome the refusal with evidence of the many alternative designs for syrup jugs. Dominion, once a Hillside distributor, began offering the accused jugs in 2016. Magistrate Judge Robertson recommended denial of Dominion 2019s motion. She noted that, as the trade dress is registered and incontestable, Dominion bears the burden of demonstrating functionality. Further, functionality is a question of fact, and Dominion was unable to demonstrate through the pleadings that the designs were factually functional. Judge Robertson did grant Dominion 2019s motion to stay discovery pending appeal of her recommendation to the District Court judge.