Judge J. Paul Oetken


Read Full-Text Decision

In its action under the Lanham Act, plaintiff It’s a New 10 LLC (New 10) claimed defendants’ Harmon Face Values Instant Therapy Leave-In Conditioner with Keratin (the Harmon Product) infringed New 10′s trade dress rights in its It’s a 10 Miracle Leave-In Plus Keratin conditioner (New 10 Product). Citing McNeil Nutritionals LLC v. Heartland Sweeteners LLC, 511 F. 3d 350, and Conopco Inc. v. May Dep’t Stores Co., 46 F.3d 1556, District Court denied New 10 a preliminary injunction against defendants’ use of trade dress. Balancing the factors in Polaroid Corp. v. Polarad Electronics Corp., 287 F. 2d 492, the court found no likelihood of confusion, and thus no likelihood of New 10′s success on the merits. The differences between the respective products’ trade dress outweighed their similarities. Defendant’s cylindrical product is taller than New 10′s product having a flanged design. Also, its product was a lighter royal blue as compared to New 10 Product colored deep navy bordering on purple. Most significantly, the products’ focal points differed. Because New 10 did not show that the design of its keratin product line was particularly strong or distinctive, New 10′s state law-based claim that defendants’ product violated New York’s anti-dilution statute did not support an injunction.