Keep A Breast Foundation v. The Seven Group, 2011 US Dist. LEXIS 83004 (S.D. Cal.)
Plaintiff sued defendant for trademark infringement, including claims based on trade dress and California unfair business practices. Defendant moved to dismiss these claims. The court granted in part and denied in part.
Defendant moved to dimsiss the trade dress count because the trade dress was not sufficiently plead. The court agreed, “Here, Plaintiff alleges only that ‘the Defendants have adopted the overall look and feel of products being sold bearing [Plaintiff’s] trademarks.’ Plaintiff does not describe, or even list, the elements that compose the ‘overall look and feel’ of their products. Defendants have not been sufficiently put on notice of the trade dress at issue.”
The court, however, refused to dismiss the unfair business practices count. Defendant failed to present sufficient legal authority that Lanham Act claims prempted claims based on the California Unfair Business Practices Act because cases cited by defendant held only that such claims are preempted by the Copyright Act.