District Judge Kiyo A. Matsumoto
The parties produce novelty soaps. Plaintiff Bubble Genius claimed an unregistered trade dress in its “In Your Element Periodic Table Soap” created with the intent to invoke the chemical periodic table of elements. In July 2014 Smith, doing business as “Just Bubbly,” introduced its own line of soap using periodic tables in the public domain. In June 2015 a customer informed Bubble Genius it “found a new vendor of the Element Soaps.” Claiming its customer mistakenly believed Just Bubbly’s product to be its “In Your Element Soap” Bubble Genius sued for trade dress infringement and unfair competition under the Lanham Act and New York law. District court dismissed suit for failure to state a claim. Although plaintiff’s trade dress was aesthetically functional as purely ornamental, each element thereof was generic. Finding that plaintiff copied information readily available in the public domain when designing its soap the court, finding the case analogous to Wallace Int’l Silversmiths Inc. v Goldinger Silver Art Co., 916 F. 2d 76, found plaintiff could not claim exclusive use of the periodic table of elements form the public domain to make its novelty soaps. Nor did plaintiff allege facts supporting a plausible claim its trade dress acquire secondary meaning.