Interpreting, Not Modifying: Appellate Jurisdiction over Orders Applying Existing IP Injunctions in Lego A/S v. Zuru Inc.

I. Introduction

This commentary examines the United States Court of Appeals for the Second Circuit’s summary order in Lego A/S v. Zuru Inc., No. 24-634-cv (2d Cir. Dec. 10, 2025), dismissing Zuru’s interlocutory appeal for lack of appellate jurisdiction. Although issued as a non-precedential “Summary Order,” the decision provides a detailed and instructive application of:

• The limits of interlocutory appellate jurisdiction under 28 U.S.C. § 1292(a)(1) when a district court applies an existing preliminary injunction to redesigned products;
• The “more discerning observer” test for substantial similarity in copyright cases involving functional or unprotectable elements;
• The Polaroid likelihood-of-confusion framework for product-configuration trademarks or trade dress under the Lanham Act.

The dispute arises from Lego’s efforts to protect its iconic “Minifigure” toy character from lookalike figurines produced by Zuru. After a 2019 preliminary injunction barred Zuru’s first-generation figurines and any “substantially similar” or “confusingly similar” figures, Lego later challenged Zuru’s second- and third-generation redesigns. The district court repeatedly concluded that Zuru’s redesigns still fell within the scope of the original injunction. Zuru sought to characterize these rulings as a “modification” of the injunction, thereby triggering appellate jurisdiction under § 1292(a)(1). The Second Circuit rejected this characterization.

The panel—Judges Walker and Bianco (Judge Wesley recused after argument)—held that the district court’s order was merely an interpretation and application of an existing injunction, not a modification of its scope. Because appellate jurisdiction under § 1292(a)(1) extends only to orders “granting, continuing, modifying, refusing or dissolving injunctions,” and not to orders that simply interpret or clarify, the appeal was dismissed. In reaching that conclusion, the Court necessarily engaged in a substantial merits analysis of both copyright and trademark issues to determine whether the injunction already, by its terms, covered the third-generation figurines.

Although the order expressly has no precedential effect under Second Circuit Local Rule 32.1.1, it will likely be cited for its persuasive value on two important points:

1. How appellate courts distinguish between “modifying” an injunction (appealable) and merely “interpreting” it (non-appealable); and
2. How courts should analyze redesigned products under broad intellectual property injunctions that reach “substantially similar” or “confusingly similar” future products.

II. Summary of the Opinion

A. Procedural Background

Lego sued Zuru in the District of Connecticut (Judge Alvin W. Thompson) asserting that Zuru’s “First-Generation” figurines infringed:

• Copyrights in Lego’s Minifigure character; and
• Trademarks (or trade dress) in the Minifigure configuration.

Lego also brought a design patent claim and a Connecticut Unfair Trade Practices Act claim, but those were not at issue in this appeal.

In 2019, the district court granted Lego a preliminary injunction. The order barred Zuru from manufacturing or selling the First-Generation figurines and, critically, from selling:

“any figurine or image that is substantially similar to the Minifigure Copyrights or likely to be confused with the Minifigure Trademarks.”

The Federal Circuit (which had jurisdiction at that time because of the design patent claim) affirmed the portion of the preliminary injunction relating to Zuru’s figurines. See Lego A/S v. Zuru Inc., 799 F. App’x 823, 827–32 (Fed. Cir. 2020).

After Zuru introduced “Second-Generation” figurines, the district court held Zuru in contempt, finding those figurines still “substantially similar” or “likely to be confused” under the injunction. The court then modified the injunction procedurally by requiring Zuru to give 30 days’ notice before manufacturing or selling any new figurines.

In November 2023, Zuru provided such notice for “Third-Generation” figurines. In February 2024 (in what the Second Circuit labels Lego I), the district court held that these third-generation figurines were “subject to the [existing] Preliminary Injunction Order” and enjoined their manufacture and sale.

Zuru appealed. In March 2025 (Lego II), the Second Circuit issued a limited remand under United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994), directing the district court to:

• Provide a fuller assessment of whether the Third-Generation figurines are “substantially similar” to Lego’s Minifigure (copyright) or “likely to be confused” with it (trademark); and
• Apply the “more discerning observer” test in its substantial similarity analysis.

On remand, in a detailed 29-page opinion (Lego III), the district court again concluded that the Third-Generation figurines fell within the scope of the preliminary injunction because they were:

• Substantially similar to the Minifigure for copyright purposes; and
• Likely to cause confusion under the Lanham Act using the Polaroid factors.

Zuru renewed its appeal, contending that the district court’s findings on similarity and confusion were legally erroneous and thus amounted to a “modification” of the injunction—purportedly creating appellate jurisdiction under 28 U.S.C. § 1292(a)(1).

B. Holding

The Second Circuit dismissed the appeal for lack of appellate jurisdiction. The core holding is:

Because the existing preliminary injunction already applies to “any figurine” that satisfies the legal standards for copyright infringement (substantial similarity) or trademark infringement (likelihood of confusion), the district court’s determination that Zuru’s Third-Generation figurines meet those standards was merely an interpretation and application of the injunction, not a modification of it.

Therefore, under § 1292(a)(1) and the Court’s prior decisions (including JLM Couture, Inc. v. Gutman and In re Tronox Inc.), the order was not immediately appealable. Nevertheless, to answer the jurisdictional question, the panel took a “peek at the merits” and agreed with the district court on both:

• Substantial similarity under the “more discerning observer” test; and
• Likelihood of confusion under the Polaroid factors (with a limited correction on the “actual confusion” factor).

III. Analysis

A. Precedents and Authorities Cited

1. Appellate Jurisdiction and Injunctions

• 28 U.S.C. § 1292(a)(1) – Gives courts of appeals jurisdiction over interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” The key fight in this case is whether the district court “modified” the injunction or merely applied it.
• JLM Couture, Inc. v. Gutman, 91 F.4th 91 (2d Cir. 2024) – Clarifies that courts lack interlocutory jurisdiction over orders that simply interpret or clarify an injunction’s terms; only orders that materially change the injunction’s scope are appealable under § 1292(a)(1).
• In re Tronox Inc., 855 F.3d 84 (2d Cir. 2017) – Explains that when deciding whether an order modifies or merely interprets an injunction, the appellate court:
  • Applies de novo review; and
  • May take at least a “peek at the merits” to assess whether the challenged order really changes the injunction’s reach.
  It also notes that when the injunction’s language is tied to legal terms (like “substantial similarity”), the required merits inquiry can be more searching.
• EEOC v. Local 40, Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 76 F.3d 76 (2d Cir. 1996) – Earlier authority addressing how appellate courts distinguish between interpreting and modifying injunctions.
• United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994) – Provides the procedural model for a “limited remand” to supplement the record (as done in Lego II), while the appeal remains in the court of appeals.

2. Copyright: Substantial Similarity

• Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) – The foundational Supreme Court case setting out the two elements of copyright infringement:
  1. Ownership of a valid copyright; and
  2. Copying of original, protectable expression.
• Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010) – Establishes the “total concept and feel” approach and emphasizes that, even when unprotectable elements are filtered out, the substantial similarity analysis is guided by the ordinary observer’s perspective, using “good eyes and common sense.”
• Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996 (2d Cir. 1995) – Introduces the “more discerning observer” test for works combining protectable and unprotectable elements. The observer must focus on protectable expression, but still considers the “total concept and feel.”
• Abdin v. CBS Broad. Inc., 971 F.3d 57 (2d Cir. 2020) – Confirms that determining substantial similarity is reviewed de novo by the Second Circuit.

3. Trademark: Likelihood of Confusion

• Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961) – The seminal Second Circuit decision articulating the eight-factor “Polaroid test” for likelihood of confusion under the Lanham Act.
• Souza v. Exotic Island Enters., Inc., 68 F.4th 99 (2d Cir. 2023) – Recently restates the Polaroid factors and explains that the ultimate question of likelihood of confusion is considered a question of law, reviewed de novo, although underlying factual findings are given deference.
• Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867 (2d Cir. 1986) – Clarifies that actual consumer confusion is not required to establish likelihood of confusion under the Lanham Act.

4. Case-Specific Prior Rulings

• Lego A/S v. Zuru Inc., 799 F. App’x 823 (Fed. Cir. 2020) – The Federal Circuit affirmed the portion of the district court’s 2019 preliminary injunction that addressed Zuru’s First-Generation figurines.
• Lego A/S v. Zuru Inc. (“Lego I”), No. 3:18-cv-2045 (AWT), 2024 WL 992929 (D. Conn. Feb. 5, 2024) – District court order holding that Third-Generation figurines are “subject to the [existing] Preliminary Injunction Order.”
• Lego A/S v. Zuru Inc. (“Lego II”), No. 24-634-cv, 2025 WL 915027 (2d Cir. Mar. 26, 2025) – The Second Circuit’s prior remand, directing the district court to assess substantial similarity and likelihood of confusion more fully, using the more discerning observer test.
• Lego A/S v. Zuru Inc. (“Lego III”), No. 3:18-cv-2045 (AWT), 2025 WL 1518284 (D. Conn. May 28, 2025) – The 29-page supplemental order on remand, concluding that the Third-Generation figurines fall within the existing injunction based on both substantial similarity and likelihood of confusion.

B. Legal Reasoning

1. Jurisdiction: Interpretation vs. Modification of an Injunction

The threshold issue is whether the court of appeals had jurisdiction under 28 U.S.C. § 1292(a)(1), which authorizes interlocutory appeals from orders “granting, continuing, modifying, refusing or dissolving injunctions.” The Second Circuit does not have jurisdiction over orders that merely interpret or clarify an existing injunction.

The 2019 preliminary injunction prohibited Zuru from making the First-Generation figurines and more broadly:

“any figurine or image that is substantially similar to the Minifigure Copyrights or likely to be confused with the Minifigure Trademarks[.]”

In Lego II, the Second Circuit stated that the injunction “rightly applies to any figurine that meets the legal standard for copyright infringement (substantial similarity) or trademark infringement (likelihood of confusion).” Thus, the scope of the injunction was already defined in terms of well-established legal standards.

In the present appeal, Zuru argued that the district court, by concluding on remand that the Third-Generation figurines are substantially similar and confusingly similar, effectively “modified” the injunction’s reach. The Second Circuit, invoking Tronox and JLM Couture, rejected this argument:

• The question whether the Third-Generation figurines meet the legal standards (substantial similarity / likelihood of confusion) is a merits question, not a question of the injunction’s textual scope.
• Because the injunction already encompasses “any figurine” that meets those standards, a correct application of those standards to specific products does not expand the injunction; it simply determines whether those products fit within its existing scope.
• An order finding that new products violate a previously entered injunction is therefore an interpretation or enforcement of that injunction, not a modification, unless the court redefines or broadens the injunction’s terms.

To decide whether the district court had merely interpreted the injunction, the Second Circuit engaged in a “peek at the merits,” as Tronox permits, because the injunction’s language is tied to legal terms (“substantial similarity,” “likelihood of confusion”). Those legal conclusions receive de novo review. The panel accordingly reviewed (and agreed with) the district court’s determinations on:

• Substantial similarity (copyright); and
• Likelihood of confusion (trademark).

Having concluded that the Third-Generation figurines indeed meet those infringement standards—and thus are covered by the injunction’s plain language—the court held that the district court’s order did not modify the injunction. As a result, § 1292(a)(1) did not confer jurisdiction, and the appeal had to be dismissed.

2. Copyright Analysis: The “More Discerning Observer” and Substantial Similarity

a. Legal Standard

Under Feist, a copyright plaintiff must prove:

1. Ownership of a valid copyright; and
2. Copying of original, protectable elements of the work.

The second element typically has two steps:

1. Actual copying (often inferred from access and similarities); and
2. Wrongful copying, evaluated by whether “a substantial similarity exists between the defendant’s work and the protectible elements of plaintiff’s.” Peter F. Gaito, 602 F.3d at 63.

Where a work contains both protectable and unprotectable elements (e.g., functional features, common shapes, or scenes à faire), the Second Circuit applies the “more discerning observer” test:

• The court must “attempt to extract the unprotectable elements” from consideration; but
• Even then, the analysis remains guided by the “total concept and overall feel” of the works as perceived by the ordinary observer, using “good eyes and common sense.” Peter F. Gaito, 602 F.3d at 66; Knitwaves, 71 F.3d at 1002.

The substantial similarity determination is a question of law, reviewed de novo. Abdin, 971 F.3d at 66.

b. District Court’s Filtering of Unprotectable Elements

On remand, the district court faithfully implemented the more discerning observer test. It first identified certain features of the Lego Minifigure that it regarded as unprotectable due to functionality:

• The stud projection on top of the head;
• The inside radius of the c-shaped hands; and
• The holes that receive stud projections at the base of the feet and the back of the legs.

Zuru had argued that fifteen elements of the Minifigure were functional and therefore unprotectable. The district court rejected most of those arguments, accepting only the three elements listed above as unprotectable for copyright purposes. It also rejected Zuru’s expert’s approach because he:

“dissect[ed] the works into their separate components, and compare[d] only those elements which are themselves copyrightable” rather than comparing the “total concept and overall feel” of the works.

That approach is inconsistent with Peter F. Gaito and Knitwaves, which caution against over-dissection; even the more discerning observer must consider the works as integrated wholes once unprotectable elements are filtered out.

c. Expert Testimony and “Total Concept and Feel”

Lego’s expert opined that:

“the overall look and feel of each [Third-Generation] Figurine is substantially similar to the overall look and feel of the Asserted Copyrights . . . embodied by the LEGO Minifigure figurine as evidenced by a side-by-side comparison of photographs of the [Third-Generation] Figurines and LEGO Minifigure figurine. The [Third-Generation] Figurines and the Minifigure figurine incorporate similar combinations of geometric shapes with similar overall proportions, including rectangular shapes, and slight curves.”

The expert further observed that overlays of the silhouettes of the Third-Generation figurines on the Minifigure showed only “miniscule differences” (slightly greater height, marginally narrower waist, slightly higher arms) that did “not change the overall look and feel of the figurines.”

The district court found Lego’s expert persuasive and Zuru’s expert “deficient,” particularly because he failed to apply the “total concept and feel” framework. The Second Circuit found “no basis to disturb” the district court’s assessment of the expert evidence.

d. The Second Circuit’s De Novo Agreement

On de novo review, the Second Circuit concluded that:

• The district court correctly identified and excluded unprotectable elements; and
• When the remaining protectable elements are compared under the more discerning observer standard, the Third-Generation figurines are substantially similar to Lego’s Minifigure.

That conclusion is decisive for jurisdiction: because the injunction already prohibits any figurine “substantially similar” to the copyrighted Minifigure, and because the Third-Generation figurines meet that standard, they are covered by the injunction without any change to its language or scope.

3. Trademark Analysis: Likelihood of Confusion under the Polaroid Factors

a. Legal Standard

For Lego’s trademark claim, the district court applied the classic Polaroid factors, restated in Souza v. Exotic Island Enters., Inc., 68 F.4th 99, 110 (2d Cir. 2023):

1. Strength of the trademark;
2. Similarity of the marks;
3. Proximity of the products and their competitiveness with one another;
4. Likelihood that the prior owner will “bridge the gap” into the junior user’s market;
5. Evidence of actual consumer confusion;
6. Evidence that the junior user adopted the mark in bad faith;
7. Respective quality of the products; and
8. Sophistication of consumers in the relevant market.

While the weight of each factor varies case by case, and no factor is dispositive, the Second Circuit considers the ultimate likelihood-of-confusion determination to be a question of law, reviewed de novo. Souza, 68 F.4th at 109.

b. Application of the Polaroid Factors

On remand in Lego III, the district court undertook a thorough Polaroid analysis. The Second Circuit reviewed that analysis de novo and agreed with the ultimate conclusion that Lego had shown a likelihood of confusion.

(1) Strength of the Mark

The district court concluded that Lego’s Minifigure mark is strong, based on:

• Over $200 million in advertising and promotion between 1978 and 2015;
• More than 120 million Minifigures sold in that period;
• Approximately 37 years of use before Lego sought formal trademark registration, indicating long-term marketplace recognition; and
• Lego’s use of authorized licensees and active enforcement against infringements, demonstrating policing of the mark.

These facts show substantial commercial strength. The Second Circuit agreed that this factor weighs in Lego’s favor.

(2) Similarity of the Marks

The district court found a “high degree of similarity” between the Minifigure and the Third-Generation figurines, emphasizing that:

• Side-by-side comparison reveals closely matching shapes, proportions, and overall appearance; and
• The relevant consumers—adult purchasers of inexpensive children’s toys—“generally do not inspect individual details closely enough to recognize differences,” underscoring that even modest differences are unlikely to dispel confusion.

The Second Circuit agreed that this factor strongly favors Lego.

(3) Proximity of the Products

The products directly compete:

• Both are small plastic toy figurines;
• They target the same market segment—children and their adult purchasers; and
• They occupy the same product category and price range.

The district court found “no difference” in the market they target. The Second Circuit agreed that this factor supports a finding of likelihood of confusion.

(4) Bridging the Gap

This factor asks whether the senior user (Lego) is likely to expand into the junior user’s market. Here, Lego and Zuru already compete in the same product category, so there is no gap to bridge. The district court found, and the Second Circuit accepted, that this factor is essentially neutral or insignificant in this context.

(5) Actual Confusion

The district court initially found that this factor weighed in Lego’s favor, but the Second Circuit corrected that aspect. The panel agreed with the district court’s legal premise—that actual confusion is not required to prevail under the Lanham Act, citing Lois Sportswear, 799 F.2d at 875. However, the record contained no evidence of actual confusion specific to the Third-Generation figurines.

The absence of such evidence was understandable: Lego filed an emergency motion to enjoin the Third-Generation figurines only twelve days after Zuru filed its notice of intent to manufacture and sell them, leaving no real opportunity for marketplace confusion to manifest. For that reason, the Second Circuit deemed this factor neutral. The court noted that even if it were to be weighed in Zuru’s favor, the overall analysis would still yield a likelihood of confusion.

(6) Bad Faith

The district court found that Zuru acted in bad faith, citing:

• A “truncated redesign process” for the Third-Generation figurines that began with the Minifigure itself as the starting model; and
• Zuru’s broader litigation conduct, including a “demonstrated lack of commitment to keeping a ‘safe distance’ from infringing conduct,” especially after previous injunction and contempt findings.

This factor weighed in Lego’s favor. The Second Circuit agreed that the evidence supported an inference of bad faith.

(7) Quality of the Products

The district court concluded that the comparative quality of Lego’s and Zuru’s figurines did not meaningfully bear on likelihood of confusion in this case. The Second Circuit did not disturb that assessment and treated the factor as neutral or of limited relevance.

(8) Consumer Sophistication

The district court reaffirmed its prior conclusion that:

“the purchase of inexpensive toy figures, intended for use by children, does not require a high degree of sophistication.”

Less sophisticated purchasers are more likely to be confused by similar products. The Second Circuit agreed that this factor favors Lego.

c. Overall Likelihood of Confusion

Having considered all the Polaroid factors, the district court concluded that Lego “is likely to be able to establish that the Third-Generation Figurines are likely to cause confusion.” The Second Circuit, reviewing de novo, concurred:

“We have reviewed the district court’s thorough and careful consideration of the Polaroid factors, and we agree with its overall conclusion that, on this record, the Third-Generation figurines are likely to be confused with the Lego Minifigure.”

Again, this conclusion is jurisdictionally significant: the preliminary injunction expressly reaches any figurine “likely to be confused” with Lego’s Minifigure trademarks. Because the Third-Generation figurines meet that standard, their inclusion under the injunction does not constitute a new or expanded injunction; it is simply a determination that they fit within the preexisting coverage.

C. Impact and Practical Implications

1. Jurisdictional Line-Drawing under § 1292(a)(1)

The most immediate doctrinal significance of the decision lies in its reinforcement of a strict jurisdictional distinction:

• Appealable: Orders that change the text or scope of an injunction (granting, expanding, narrowing, dissolving, or refusing to modify).
• Not appealable: Orders that merely interpret, clarify, or enforce an existing injunction by deciding whether particular conduct or products fall within its pre-defined terms.

Defendants seeking to challenge an adverse infringement finding under such an injunction cannot manufacture interlocutory jurisdiction simply by:

• Recasting a merits dispute as a “modification” issue, or
• Introducing a revised product and labeling the district court’s ruling on that product a “new” or “expanded” injunction.

As long as the injunction’s terms already encompass any product that satisfies the relevant legal standards (here, “substantial similarity” and “likelihood of confusion”), determinations that a redesigned product is still infringing will typically be considered non-appealable interpretations or applications. Review of those determinations must generally await final judgment.

2. Incentives for Broad Injunction Drafting and “Future Products”

This case also underscores the potency of broadly drafted IP injunctions. The 2019 order extended beyond the specific accused First-Generation figurines to enjoin any figurine “substantially similar” or “likely to be confused” in the future. As a result:

• Lego did not need new preliminary injunctions for each redesign; it could instead invoke and enforce the existing injunction as Zuru introduced new generations of figurines.
• Zuru’s attempts to challenge those enforcement orders via interlocutory appeal were blocked by the interpretation/modification distinction.

Practitioners on the plaintiff side will see in this a strong reason to seek injunctions that explicitly cover:

“Any product or design that is substantially similar to the protected work or likely to cause confusion with the protected mark or trade dress.”

Such language, once sustained on appeal, can give the rightsholder continuing, robust protection against incremental redesigns, while significantly limiting the defendant’s ability to obtain repeated interlocutory appeals as it iterates.

3. Design-Around Strategies for Enjoined Defendants

For defendants, the order highlights several practical lessons:

• Redesigns must be meaningfully distinct: Cosmetic or small-scale adjustments that preserve the overall look and feel of the original infringing product are likely to be swept back under a broad injunction.
• Challenge breadth early: Any legal challenge to broad “future product” language in a preliminary injunction must be raised promptly, including on the first interlocutory appeal. Once the language is in place and affirmed, subsequent iterations may be enforceable without new appeal rights.
• Bad faith hurts: A redesign process that begins with the plaintiff’s product, especially in the context of prior findings of infringement and contempt, can be viewed as evidence of bad faith, both for trademark purposes and in the court’s equitable discretion.

4. Substantive IP Protection for Iconic Product Configurations

On the substantive IP side, the order illustrates how copyright and trademark can work in tandem to protect iconic three-dimensional product configurations:

• Copyright protects the Minifigure’s particular artistic expression—the stylized combination of shapes and proportions—after filtering out strictly functional elements.
• Trademark/trade dress protects the Minifigure’s configuration as a source-identifier, leveraging decades of sales, advertising, and enforcement.

Together, these rights enabled Lego to block successive redesigns that remained too close to the original aesthetic and consumer impression of the Minifigure, even as Zuru attempted to make incremental changes.

IV. Complex Concepts Simplified

1. Summary Order and Non-Precedential Effect

The Second Circuit labels this disposition a “Summary Order” and states that “Rulings by summary order do not have precedential effect.” Under Federal Rule of Appellate Procedure 32.1 and Local Rule 32.1.1:

• Parties may still cite summary orders issued on or after January 1, 2007;
• Such orders are persuasive but not binding precedent; and
• Parties citing a summary order must provide a copy to any unrepresented party.

2. Preliminary Injunction

A preliminary injunction is a court order issued at an early stage of litigation to preserve the status quo and prevent irreparable harm before a final judgment. To obtain one, a plaintiff typically must show:

• Likelihood of success on the merits;
• Irreparable harm absent the injunction;
• The balance of hardships favors the plaintiff; and
• The public interest would not be disserved.

Because preliminary injunctions occur before a full trial, Congress allows limited immediate appeals of such orders under § 1292(a)(1). But that jurisdiction is narrowly construed.

3. Substantial Similarity and the “More Discerning Observer”

“Substantial similarity” in copyright law asks whether, to an ordinary observer, the defendant’s work captures the protected expressive essence of the plaintiff’s work—not just whether they are literally identical.

When a work combines protectable and unprotectable elements (e.g., utilitarian features or common shapes), courts use the “more discerning observer” test:

• They filter out elements that are functional, generic, or otherwise non-protectable; and
• They then ask whether the remaining protectable elements in their overall combination and feel are substantially similar.

The key is to avoid both extremes: ignoring unprotectable elements entirely in a way that destroys context, or treating every small shared detail as evidence of infringement.

4. Likelihood of Confusion and the Polaroid Factors

In trademark law, the central question is whether consumers are likely to be confused into believing that the defendant’s goods or services come from—or are sponsored or approved by—the plaintiff.

The Polaroid factors help courts structure this inquiry. They include the strength of the mark, how similar the marks are, how close the products are in the marketplace, whether the senior user might expand into the junior user’s field, evidence of actual confusion, the junior user’s good or bad faith, the relative quality of the goods, and the sophistication of the buyers.

No single factor controls; they must be weighed together in light of practical marketplace realities.

5. Interlocutory Appeal vs. Final Judgment

Normally, appeals only lie from “final decisions” of district courts (28 U.S.C. § 1291). An “interlocutory” appeal is one taken before final judgment. Interlocutory appeals are disfavored because they can interrupt ongoing proceedings, but § 1292(a)(1) is an exception for injunction-related orders.

The key point from Lego A/S v. Zuru is that not every order touching on an injunction is appealable. Only those orders that actually grant, deny, or materially alter injunctive relief qualify. Orders that merely clarify or apply an existing injunction to specific conduct are treated as non-final, with review deferred until the end of the case.

6. “Safe Distance” and Bad Faith

When a party has been found to infringe and is subject to an injunction, courts expect it to stay a “safe distance” away from the prohibited conduct. This means:

• Not pushing right up to the line of infringement in redesigns;
• Designing with independent creativity rather than using the plaintiff’s product as the template; and
• Taking the injunction seriously as an ongoing obligation, not just a hurdle to be navigated around.

Failure to keep a safe distance—especially when coupled with rushed redesigns that begin from the plaintiff’s product—can be treated as evidence of bad faith and can influence both merits and equitable decisions.

V. Conclusion

The Second Circuit’s summary order in Lego A/S v. Zuru Inc. offers a clear, if technically non-precedential, exposition of how appellate courts police the boundary between:

• Appealable modifications of injunctions; and
• Non-appealable interpretations and applications of existing injunctive orders.

By confirming that the district court correctly found Zuru’s Third-Generation figurines both substantially similar to Lego’s copyrighted Minifigure and likely to cause confusion under the Lanham Act, the Second Circuit held that the preexisting 2019 preliminary injunction already encompassed those products. The district court did not modify the injunction; it simply enforced it.

The decision illustrates the practical power of broadly worded IP injunctions that reach future “substantially similar” or “confusingly similar” products, and it underscores the difficulty defendants face in seeking interlocutory review of enforcement orders against successive redesigns. At the same time, it reinforces established doctrinal tools:

• The “more discerning observer” test and “total concept and feel” analysis in copyright;
• The Polaroid multi-factor framework for likelihood of confusion; and
• The appellate court’s limited authority to “peek at the merits” to resolve jurisdictional questions under § 1292(a)(1).

In the broader legal landscape, Lego A/S v. Zuru Inc. serves as a cautionary tale for defendants attempting iterative design-arounds under the shadow of a broad injunction, and as a roadmap for rights holders seeking durable, forward-looking injunctive relief in complex intellectual property disputes.