Last week, the U.S. Court of Appeals for the Federal Circuit issued a precedential decision in Top Brand LLC v. Cozy Comfort Co. LLC, No. 2024-2191 (July 17, 2025), reversing the district court's denial of Top's motion for judgment as a matter of law ("JMOL") that it did not infringe Cozy's design patent and trademarks.
Cozy accused Top of infringing its design patent on the ornamental design of an oversized hooded sweatshirt with an elevated "marsupial" pocket. Top responded by seeking a declaratory judgment, and Cozy counterclaimed for design patent infringement and infringement of trademarks on "THE COMFY" for wearable throws and related online services. A jury found that Top infringed the design patent and trademarks, and the district court denied Top's JMOL motion. Top appealed. The Federal Circuit reversed. Regarding design patent infringement, the Court first rejected Cozy's argument that Top waived its claim construction challenge by not objecting to the jury instructions because Top's claim construction and summary judgment briefs asserted the same position it raised on appeal. The Court next explained that the doctrine of prosecution history disclaimer, including by amendment and by argument, applies to design patents. Applying the doctrine, the Court concluded that Cozy surrendered claim scope during prosecution in distinguishing prior art based on the size, shape, and position of the marsupial pocket, such that it could not rely on similarities between the claimed design's and the accused product's pockets to prove infringement. Because Cozy failed to rely on any other similarities, the Court determined that JMOL of noninfringement should have been granted.
As for the trademarks, the Court applied the Ninth Circuit's Sleekcraft test to assess whether a likelihood of confusion existed between Cozy's "THE COMFY" marks and Top's use of the word "Comfy" on its website to advertise competing blanket throws. First, the Court explained Cozy's marks are entitled to weak protection because their dominant part, "COMFY," is descriptive or highly suggestive of blanket throws and related services. Second, the Court observed that the evidence showed only that Top had used "Comfy"—not "THECOMFY"—and did so descriptively rather than as a source-identifier. Finally, the Court rejected Cozy's supposed evidence of actual confusion because it was not tied to Top's use of "Comfy." The Court therefore concluded that no reasonable jury could have found trademark infringement.
This blog post was co-authored by Chris Grable and Joshua Hartman.
Originally published 22 July 2025.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
