Monday, November 21, 2011

Vague Trade Dress Allegations Don't Survive Motion to Dismiss

Best of Everything of Southwest Florida ("BOE") claims Simply the Best ("STB") is knocking off its retail stores.  As one of its eight claims of violations of the Lanham Act, BOE accuses STB of violating BOE's trade dress.  STB sought dismissal of this count, arguing that BOE didn't adequately disclose what trade dress was being knocked off.  Plaintiff described its trade dress as follows:
Plaintiff's Trade Dress includes, but is not limited to the commercial impression, and overall look and feel of Plaintiff's stores, the unique and highly distinctive combination of separate aspects of the same, the presentation of Plaintiff's goods and the placement of its trade dress in such a a manner which creates a remarkably memorable and commercially pleasing shopping experience for Plaintiff's customers, its prospective customers and the consuming public.
The Court agreed with Defendant, finding this allegation "long on vague descriptions and short on facts."   This count was dismissed without prejudice.  Plaintiff has since filed an amended complaint with more details on the trade dress as reproduced below:
Plaintiff’s Trade Dress includes various combinations of the following features and  is presented so as to be a designation of origin and source identifier unique to  Plaintiff; specialized customer shopping boxes at a specially placed location in the store which are also displayed in such a way as to create a further visual effect; a ceiling to floor design and configuration which incorporates and is consistent with the other visual elements of the proprietary store; a certain musical arrangement collection and/or pattern played from a layout of sources that are proprietary; distinctively colored and patterned carpeting; strategically placed and shaped tables situated throughout the store in a proprietary pattern which takes into account Plaintiff’s innovative consumer purchasing data and Plaintiff’s proprietary collection of said data; textile table covers of a certain nonfunctional pattern and texture which are also used in an innovative relationship to the goods so displayed; the arrangement and layout of the goods; the unique contrast of fabric textures and colors used to cast display backgrounds through the store; a unique pattern of mirror displays and shapes; a specific and nonfunctional use of botantical presentations combined into various goods displays;  sign color, sign shapes, and location of signs and designations throughout and on the store, as well as in advertising and related displays; various color schemes; a color scheme of certain blue pantones throughout the store and in signage and advertising; and sales and inventory techniques which are believed by Plaintiff to be unique and which combine with the visual features as a part of the overall customer experience and impression. 
Defendant has answered that amended complaint.

Defendant also sought dismissal of the claim against an individually named defendant.  That allegation was based in part on a facebook posting which stated:
Simply the Best is modeled after a store called The Best of Everything where Weinzimmer and the Slottjes had spent time shopping while vacationing in Florida.  Upon returning to New York, they decided to open a similar store, even though Weinzimmer admits "we really didn't know much about the jewelry business," she says.
Recognizing that "an individual may be held liable for Lanham Act violations if she has actively caused the infringement as a moving, conscious force," the Court refused to dismiss this claim, as the discovery process would reveal whether or not she was a moving, conscious force behind the alleged infringement.

Motion to dismiss, granted in part.
Best of Everything of Southwest Florida, Inc. v. Simply the Best, LLC, Case No. 8:11-cv-1090 (Oct. 6, 2011) (J. Bucklew)

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