Federal Circuit Narrows Design Patent Enforcement and Demands More from Trademark Plaintiffs

8.6.25

Top Brand LLC v. Cozy Comfort Company LLC, No. 20224-2191, 2025 WL 1970160 (Fed. Cir. July 17, 2025) transformed a wearable blanket into a teachable moment for design patent and trademark owners. Top Brand and Cozy Comfort are competitors in the market for “wearable blankets,” or oversized hooded sweatshirts/blankets. Cozy Comfort launched “The Comfy” (as seen on Shark Tank) and obtained U.S. Patent No. D859,788 (the “’D788 Patent”) on an “enlarged over-garment with an elevated marsupial pocket.” Cozy Comfort also registered trademarks for the brand name “THE COMFY.” Top Brand was selling similar wearable blankets under different names, such as “Tirrinia” and “Catalonia.” Top Brand did not use the full mark, “THE COMFY,” but used “COMFY” as a descriptor of a category of goods. Following Cozy Comfort’s accusation that Top Brand’s hooded sweatshirts and wearable blankets infringed Cozy Comfort’s ’D788 Patent, Top Brand preemptively filed a declaratory judgment action for noninfringement and invalidity of Cozy Comfort’s patent and trademarks. In response, Cozy Comfort counterclaimed for infringement of both the design patent and its trademarks. A jury found that Top Brand’s products infringed the ’D788 Patent, and that Top Brand also infringed Cozy’s “THE COMFY” trademarks, awarding damages of roughly $18.5 million in disgorged profits. 

On appeal, the Federal Circuit reversed the jury’s verdict entirely for two reasons. First, prosecution history disclaimer applies to design patents. The court held for the first time that if a design patent applicant clearly disclaims certain design features during prosecution to overcome prior art, the applicant cannot reclaim those features in litigation when arguing infringement. In this case, Cozy Comfort had distinguished its design from prior art by emphasizing specific differences, such as the shape and placement of the pocket and the bottom hem line. The Federal Circuit found Cozy Comfort’s statements amounted to a clear surrender of claim scope, and Top Brand’s accused designs fell squarely within what Cozy Comfort surrendered. Therefore, no reasonable jury could find infringement of the design patent.  

Second, on the trademark side, the court found the evidence of consumer confusion to be insufficient. Cozy’s trademarks for “THE COMFY” presumably protect use of that phrase, but the Court noted that Top Brand never actually used the entire phrase, “THE COMFY,” as an identifier of the source or origin of the goods. The Court also identified that the jury’s finding of trademark infringement rested on scant evidence, such as a couple of Amazon customer comments that mentioned “comfy,” which the Federal Circuit deemed de minimis and not traceable to Top Brand’s conduct. As a result, the judgment for trademark infringement was tossed out due to a lack of proof of a likelihood of confusion.  

In conclusion, this decision wiped out a multimillion-dollar verdict while clarifying two important points of law: design patent holders are bound by their prosecution representations, and trademark plaintiffs should have concrete evidence of confusion, especially when the defendant does not use the disputed mark. 

S. Chase Talbot | Associate Attorney