UnIP (UnIntellectual Property): Trade Dress for Color Scheme and Protective Skirt on Exercise Equipment

The United States District Court for the Southern District of New York has dismissed a complaint for trademark infringement due to the Plaintiff’s failure to prove its unregistered trampoline-based exercise equipment’s color scheme and protective fold skirt that contained its registered trademark is not functional. Plaintiff had sold its Urban Rebounder exercise equipment to Dick’s Sporting Goods, who in turn sold it to consumers. Dick’s then began offering its own identical equipment, albeit under the name Jump Trainer and without the display of URBAN REBOUNDING mark. Dick’s filed a motion to dismiss pursuant to Rule 12(b)(6).

The Court recognized that the Plaintiff had established the necessary elements of a trade dress. However, it held that the Plaintiff failed to satisfy its burden of alleging sufficient facts to establish its alleged trade dress was non-functional and had acquired secondary meaning. In doing so, the Court stated that Plaintiff provided “no factual allegations demonstrating that the design is not aesthetically or otherwise functional” and further went on to state “the Amended Complaint makes no allegations concerning Plaintiff’s advertising expenditures, consumer surveys, prior attempts to plagiarize the trade dress or that Plaintiff exclusively uses the color scheme alleged.” Plaintiff also failed to establish trade dress dilution.

As such, Plaintiff’s Complaint was literally bounced out of court, although not off the trampoline. I have to wonder what the agreement between Plaintiff and Dick’s looked like (can you say non-compete language?). Would a copyright have been functional? Was a patent not possible? This case confirms, once again, that trade dress protection is not easy and requires specific identification.

Urban Group Exercise Consultants, Ltd. v. Dick’s Sporting Goods, Inc., 12 CIV. 3599 RWS, 2012 WL 3240442 (S.D.N.Y. Aug. 7, 2012).


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