Top Ten Imports Sues BMX Imports for Infringement of Portable Space Heater Trade Dress, Trademark, and Copyrights


Indianapolis, Indiana – Intellectual property counsel for Top Ten Imports, LLC of Indianapolis, IN, filed a trademark and copyright infringement suit against BMX Imports, L.P. of Farmers Branch, TX. Specifically, the plaintiff Top Ten alleges that the defendant has infringed Top Ten’s space heater trade dress as well as Trademark Reg. No. 3,654,284 for the mark IHEATER, registered with the U.S. Trademark Officein connection with electric space heaters, and copyrighted works protected under Application No. 1-501133071 and Application No. 1-501353066, both of which have been registered by the U.S. Copyright Officeand are directed to ornamental heater design.

The asserted trade dress of Top Ten’s portable space heaters includes non-functional, ornamental, and distinctive features such as the shape and position of the grill and the controls as well as the aesthetic design of the housing. The complaint indicates that some of these features are the subject of a pending Top Ten design patent application. BMX is a Top Ten competitor and sells portable space heaters under the HEATER PRO name and is alleged to have purchased sponsored advertisements on Internet search engines which include the IHEATER mark as a keyword. Violations of federal and state unfair competition law are also alleged.

This case has been assigned to Judge Sarah Evans Barker and Magistrate Judge Debra McVicker Lynch in the Southern District of Indiana, and assigned case no. 1:10-cv-01287-SEB-DML.

Practice Tip: In certain circumstances, ornamental, non-functional, and distinctive product features may be protected under trade dress, trademark, design patent, and copyright law.

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