"Although each element of a trade dress individually might not be inherently distinctive, it is the combination of elements that should be the focus of the distinctiveness inquiry." Jeffrey Milstein, 58 F.3d at 32 Wine Made Simple, 320 F. A trade dress which is either generic, non-specific, or inconsistent among its products cannot be distinctive.") "If a plaintiff can not establish that its ha a consistent overall look, the trade dress that is allegedly infringed does not exist." Casa Editrice Bonechi, S.R.L. 2d at 542 ("The broad category of distinctiveness incorporates three related doctrines* * *: genericness, specificity, and consistency. See Yunnan Design, 262 F.3d at 116 (quoting Walt Disney, 830 F. Thus, since plaintiff is claiming a trade dress based upon the appearance of its multiple franchises, it must establish that the overall look in each of its franchises is consistent. "Initially, this burden requires the plaintiff to articulate a specific trade dress,* * *and then to demonstrate that it has, in fact, consistently used that trade dress." Regal Jewelry, 999 F.
2d at 538 ("A generic trade dress is never protectable"), plaintiff must establish "that the appearance of its several products its franchises] is sufficiently distinct and unique to merit protection as a recognizable trade dress." Landscape Forms, 113 F.3d at 380 accord Regal Jewelry Co., Inc. 2d at 542 (quotations and citation also Pure Power, 813 F. Since "a trade dress that seeks to protect an idea, a concept, or a generalized type of appearance is generic, not distinctive, and therefore not subject to trade dress protection" 47 Maharishi Hardy, 292 F. at 722 (involving a trade dress claim based upon the design and constmction of the plaintiffs business centers to resemble ticket counters in an airport). 2011) (fmding that the p1aintiffhad a recognizable trade dress in the layout and interior decor of its indoor exercise facility) Innovative Networks, 871 F. Accordingly, the trade dress of a business may include the overall appearance of its business facilities, M, its interior design, layout or decor.
2003) ("The scope of trade dress claims has expanded to include the totality of any elements in which a product or service is packaged or presented." (quotations and citation omitted)).
1995) see also Landscape Forms, 113 F.3d at 381 ("rade dress may protect the 'overall look' of a product.") Maharishi Hardy Blechman Ltd. Satellite Airlines Ticketing Ctrs., Inc., 871 F. Distinctiveness of Store Trade Dress "Trade dress traditionally refers to the packaging or labeling of a product, but may also include the appearance of the product itself" Walt Disney Co. 62 FlLED IN CLE:Rt'.'S OFf'ICE U S DISTRICT COURT E D N Y * ,!UL 08 Z015 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -)( LONG ISLAND OFFICE FC ONLINE MARKETING, INC., Plaintiff, OPINION & ORDER 14-CV-3685 (SJF)(SIL) -againstBURI construction at the time of the inspection. Burke' s Martial Arts, LLC et al Doc. § 116 and Rule 65 of the Federal Rules of Civil Procedure is denied in its entirety. Court Description: OPINION & ORDER: SO ORDERED that (1) the branch of defts' motion seeking dismissal of plaintiffs trade dress claim pertaining to its Website pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is granted and so much of plaintiffs t rade dress claim as pertains to its Website is dismissed in its entirety with prejudice for failure to state a claim for relief (2) the branch of defts' motion seeking dismissal of plaintiffs trade dress claim as pertains to its Store Trade Dre ss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is treated as a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure and summary judgment is granted dismissing plaintiffs trade dress claim as pertains to its Store Trade Dress in its entirety with prejudice (3) defts' motion pursuant to Rule 12(b )(6) of the Federal Rules of Civil Procedure is otherwise denied and (4) plaintiffs motion for a preliminary injunction pursuant to 17 U.S.C.
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