The Festive Farm Company

Full title: THE FESTIVE FARM CO., Plaintiff, v. BE CREATIONS AND DESIGNS, INC Defendant

Court: United States District Court, W.D. Texas, Waco Division

Date published: May 9, 2023


The Festive Farm Co., a Texas corporation, sued Defendant BE Creations and Designs, Inc., a Georgia corporation, for common law trade dress infringement, common law contributory trade dress infringement, unfair competition under the Lanham Act, copyright infringement,  indirect copyright infringement, and common law misappropriation. Pl.’s Am. Compl. (ECF No. 6) at 18, 19, 22, 26, 27.

Plaintiff sells, among other things, steel ornaments depicting a cardinal or an elephant, each with a “story card” and a gift bag. Id. at 6. The plaintiff alleges that the combination of the steel ornament, the story card, and the packaging constitutes a trade dress. Id. at 7. The plaintiff also asserts that it owns the copyright to the story cards it includes with its ornaments. Id. at 23. It claims that it obtained the copyright through an oral transfer that occurred before the filing of this suit. Pl.’s Resp. at 5-6 (ECF No. 18). A written memorialization of this transfer occurred after the filing of this suit. Id. at 6.



The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object.  The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).

A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150–53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150–53; Douglass, 79 F.3d at 1415. SIGNED this 9th day of May 2023.

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