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By Tamlin Bason
Nov. 10 — A photograph of a plaintiff's packaging and a written description that describes the color scheme, typeface and “overall look and feel” of an asserted trade dress were insufficient to clearly identify all the features necessary for an infringement claim, the U.S. District Court for the Central District of California ruled Nov. 5.
The court accordingly dismissed Nutribullet LLC's Lanham Act trade dress claim against a rival blender maker that sells Nutri Ninja branded products. The plaintiff, who also makes Magic Bullet blenders, was given leave to amend its trade dress claim.
The court also dismissed—but again granted leave to amend—a Lanham Act false advertising claim that vaguely complained that there were “false reviews” of Nutribullet's products on the Internet. That pleading was insufficient because, for one thing, Section 43(a) of the Lanham Act only applies to false statements of fact, and the reviews, which were not included in the complaint, may have been opinion, the court said.
“Secondarily, simply stating that ‘false reviews' can be found somewhere on the internet does not provide sufficient notice to the Defendant as to what exactly Plaintiff alleges, as the internet is vast and contains multitudes,” the court said.
However, a Lanham Act false advertising claim and a related state law claim that was based on allegations that the defendant had engaged in false comparative advertising survived.
The defendant had not sought dismissal of a Lanham Act claim based on its allegedly false comparisons, which claimed, among other things, that the Nutribullet did not have a 900-watt motor and cannot crush ice. Judge Dean D. Pregerson determined that these allegations were sufficient to support a claim under state law.
Nutribullet, and its parent company, Homeland Housewares LLC, were represented by Dylan C. Dang of Trojan Law Offices, Beverly Hills, Calif. The defendant, Euro-Pro Operating LLC, was represented by Kenneth L. Wilton of Seyfarth Shaw LLP, Los Angeles.
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