Judges tend not to go thru a full likelihood-of-confusion analysis at 12b6 but here you are.
The Court found that the WONDERFUL packaging and Defendant’s packaging do not possess “striking similarity” (sic). The Court notes that while their were similarities . . .
The handling of the third factor, channels of trade was a bit puzzling. Although Pom sells mostly in brick and mortar stores, it, like Defendant, sells on Amazon. Despite two competitors selling the identical product in the identical trade channel, the Court held that channels of trade “tilts slightly on Defendant’s favor (apparently because Defendant doesn’t sell in brick and mortar.
The handling as to whether Plaintiff had adequately pled “non-functionality” is a bit of a muddle as the Court seems to believe that Plaintiff’s allegation was conclusory. However, Plaintiff has pled the ownership of two registered trade dresses (with words and without). The registrations would seem to be incontestable (having been registered in 2014). The trade dress is on the packaging and is not a component or the configuration of the product. The import is that there is no presumption of functionality against packaging trade dress. Yes, the Plaintiff has to allege distinctiveness for both its registered and unregistered claims, but it would seem to have adequately pled secondary meaning for both causes by alleging ownership of incontestable registrations.
The Court then dismissed both causes of action, relying on the failure to pled non-functionality and the failure to plead substantial similarity.