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Here’s What Happened:
Cozy Comfort Co. manufactures and sells oversized hooded sweatshirts and blankets. Cozy Comfort has a design patent (see graphic). Cozy Comfort uses “THE COMFY” as a trademark for its products.
Top Brand LLC also sells oversized hooded sweatshirts and blankets and uses the trademark “COMFY”.
Cozy Comfort accused Top Brand of patent and trademark infringement.
A jury returned a verdict in Cozy Comfort’s favor for $15.4 million in disgorged profits for patent infringement and $3.08 million in disgorged profits for trademark infringement. The trial court denied Top Brand’s motions for judgment as a matter of law.
Top Brand appealed to the Federal Circuit Court of Appeals. Both at the trial court level and on appeal, Top Brand argued that: (1) Cozy Comfort disclaimed the offending parts of design of the hoodie; and (2) the trademark is weak and not entitled to protection.
First, the Federal Circuit looked at the prosecution history of Cozy Comfort’s design patent. Sure enough, Cozy Comfort surrendered claim scope by arguing certain features of the claimed hoodie design due to prior art. The Court applied the ordinary observer test, i.e., whether an ordinary observer familiar with the prior art would find the overall visual impression of the patented and accused designs substantially similar. The Court found the accused products to be within the disclaimed scope because they contained features similar to the prior art.
Second, the Federal Circuit found that “THE COMFY” trademark is only entitled to weak protection because it is descriptive or highly suggestive of the goods (blanket throws). The Court also noted that Top Brand did not use the full mark “THE COMFY” but instead used “Comfy” in connection with the accused products. On the issue of actual consumer confusion, Cozy Comfort’s evidence of questions and answers on Amazon showed insubstantial evidence of confusion and failed to connect any confusion to Top Brand.
Therefore, the Federal Circuit reversed the trial court holding that Top Brand’s motions for judgment as a matter of law should on both infringement claims should have been granted.
WHY YOU SHOULD KNOW THIS: In the heat of patent prosecution, the inventor may have to disclaim certain attributions of the invention or design in order to obtain the patent. The decision to accept a disclaimer should be weighed against future enforcement of the patent. Also, adopting a descriptive trademark can restrict the ability to stop others from using a similar trademark.
Cited Authority_:_ Top Brand LLC v. Cozy Comfort Co., No. 2024-2191 (Fed. Cir. July 17, 2025)