United States District Court, D. New Jersey
September 22, 2005.
MICHAEL J. MEYHOEFER and NATURAL PEST SOLUTIONS, INC., Plaintiffs,
ARETT SALES CORP., et al. Defendants.
The opinion of the court was delivered by: JEROME SIMANDLE, District Judge
Plaintiffs Michael J. Meyhoefer and Natural Pest Solutions,
Inc. ("NPSI") produce and sell 48-ounce hand-operated insecticide
repellant spray containers. (Sec. Am. Compl. at ¶¶ 15, 16, 17).
Plaintiffs filed this lawsuit under the Lanham Act and New Jersey
law alleging Defendants committed trade dress infringement for
their manufacture, distribution and sale of "confusingly similar"
containers. (Id. ¶ 18.) The matter is presently before the Court on the motion for summary judgment by Defendants Bobbex,
Inc. and Coviello Bros., Inc. (collectively the "Bobbex
Defendants").*fn1 Because Plaintiffs have chosen to rest
upon the mere allegations of the Complaint and have not set forth
specific facts showing that there is a genuine issue for trial,
summary judgment will be entered in favor of the Bobbex
Plaintiffs have brought claims for trade dress infringement
under the Lanham Act, 15 U.S.C. § 1125, and unfair competition
under New Jersey state law, alleging that they maintain trade
dress protection on the "shape, color and overall appearance and
trade impression" of their 48-ounce hand pump sprayers for deer
and geese repellants. (Sec. Am. Compl. ¶ 15.) Plaintiffs allege
that they applied for trade dress protection of the sprayers with
the United States Patent and Trademark Office. (Id. ¶ 17.) The
following facts are not in dispute:*fn2 Delta supplied 48-ounce plastic hand-pump sprayers to
Plaintiffs from April 2002 to September 2002.*fn3 (Bobbex
Defs. L. Civ. R. 56.1 Statement ¶ 1.6.) Delta does not, nor did
it ever, have any exclusivity agreements with Plaintiffs for
these products. (Id.) In fact, Delta had been selling 48-ounce
sprayers to other customers long before, as well as during, the
time it sold that product to Plaintiffs. (Id.) Delta did not
license or confer any trademark, trade dress, copyright or patent
rights to Plaintiff with respect to any of the sprayers in
question. (Id. ¶ 1.7.)
The bottle used by the Bobbex Defendants can be purchased out
of a catalog of spray bottles sold by Delta to customers
including other producers of pest repellant, manufacturers of
cleaning and other solutions, as well as distributors and
retailers selling the empty bottles for varied uses. These
plastic spray bottles are composed of two pieces bottles and
sprayer tops which are assembled as single units. Delta offers
spray bottles in various color combinations. (Id. ¶ 1.1.)
There are a number of domestic and international suppliers of
48-ounce plastic spray bottles who offer their products in a
variety of color combinations. (Id. ¶ 1.8.) II. SUMMARY JUDGMENT STANDARD OF REVIEW
Summary judgment is appropriate when the materials of record
"show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(c). The threshold inquiry is whether
there are "any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be
resolved in favor of either party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); Brewer v. Quaker State Oil
Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation
The non-moving party "may not rest upon the mere allegations or
denials of" its pleading in order to show the existence of a
genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than
rely only "upon bare assertions, conclusory allegations or
suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985),
cert. denied, 474 U.S. 1010 (1985) (citation omitted); see
Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's
evidence is a mere scintilla or is "not significantly probative,"
the court may grant summary judgment. Liberty Lobby,
477 U.S. at 249-50. III. DISCUSSION
This Court has subject matter jurisdiction over the Lanham Act
claim pursuant to 28 U.S.C. § 1338, and will exercise
supplemental jurisdiction over Plaintiffs' related state law
unfair competition claim pursuant to 28 U.S.C. § 1367(a). The
Lanham Act, 15 U.S.C. § 1125(a), establishes a cause of action
for trade dress infringement.*fn4 "Trade dress" refers the
design or packaging of a product which identifies the product's
source. Shire U.S., Inc. v. Barr Labs, Inc., 329 F.3d 348, 353
(3d Cir. 2003). The purpose of trade dress protection is to
"secure the owner of the [trade dress] the goodwill of his
business and to protect the ability of consumers to distinguish
among competing producers." Id. (quoting Two Pesos, Inc. v.
Taco Cabana, Inc., 505 U.S. 763, 774 (1992) (omitting cites)). A plaintiff claiming trade dress infringement under that Act
must demonstrate that (1) the allegedly infringing design or
packaging feature of the product is non-functional, (2) the
feature is inherently distinctive or has acquired secondary
meaning, and (3) consumers are likely to confuse the source of
the plaintiff's product with that of the defendant's product.
Id. (citing Wal-Mart Stores, Inc. v. Samara Bros., Inc.,
529 U.S. 205, 210-11 (2000)). Plaintiffs here offer no evidence to
satisfy the elements of their Lanham Act claim. Instead, while
conceding all material facts contained in Bobbex Defendants' L.
Civ. R. 56.1 Statement, Plaintiffs maintain that they "will"
produce adequate evidence at some future date.
First, Plaintiffs maintain that they "will produce expert
testimony" to demonstrate the non-functionality of the packaging.
(Pls. L. Civ. R. 56.1 Statement.) Second, Plaintiffs allege that
they "will introduce consumer market surveys, and testimony of
sale representatives and consumers in the dear [sic] repellant
market" as well as "depositional testimony of the Bobbex
Defendants' own customers and sale representatives to prove the
existence of secondary meaning." (Id.) And, finally, Plaintiffs
state that they "will introduce consumer surveys and depositional
testimony of the Bobbex Defendants' own customer and sales
representative[s] to prove consumer confusion." (Id.) To date,
Plaintiffs have failed to follow through on even one of those
assurances. It is well-settled that a plaintiff opposing a motion for
summary judgment must do more than simply reassert factually
unsupported allegations contained in its pleadings. Plaintiffs'
failure to do so here is fatal to both of their trade dress
claims. To be sure, Plaintiffs maintain that discovery had not
been completed at the time the motion was filed. (Pls. Br. at 2.)
Moreover, the Court is not unaware that in certain circumstances
the incomplete state of discovery by itself warrants preclusion
of summary judgment on the merits. Miller v. Beneficial Mgmt.
Corp., 977 F.2d 834, 846 (3d Cir. 1992) (citing Sames v.
Gable, 732 F.2d 49, 51 (3d Cir. 1984)). However, "ordinarily a
party urging a court to postpone ruling on a summary judgment
motion pending completion of essential discovery should file an
affidavit under Fed.R.Civ.P. 56(f)." Miller,
977 F.2d at 846. The Rule 56(f) affidavit should specify "what particular
information is sought; how, if uncovered, it would preclude
summary judgment; and why it has not previously been obtained."
Pastore v. Nat'l Sec. Sys. Corp., 24 f.3d 508, 511 (3d Cir.
1994) (quoting Dowling v. City of Philadelphia, 855 F.2d 136,
140 (3d Cir. 1988)). Here, though, Plaintiffs have not attempted
to meet the requirements of Rule 56(f).
Finally, just as Plaintiffs have to failed to come forward with
any evidence supporting their Lanham Act claim, Plaintiffs have
offered no evidence to support their claim for unfair competition
under New Jersey law. As discussed above, where, as here, the motion is properly made and supported, an adverse party
here, Plaintiffs "may not rest upon the mere allegations . . .
of the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in this rule,
must set forth specific facts showing that there is a genuine
issue for trial," as required by Rule 56(e), supra. When, as in
the present case, "the adverse party does not so respond, summary
judgment, if appropriate, shall be entered against the adverse
party." Id. Because Defendants have appropriately briefed and
supported this defense, and Plaintiffs have failed to support
their opposition, summary judgment on the state law claim will
also be entered for Defendants.
For the reasons expressed above, the motion for summary
judgment will be granted and Plaintiffs' claims against the
Bobbex Defendants will be dismissed. An accompanying order will
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