Merely pointing to pictures of a product line will not suffice.") Similarly, in order to state either an unfair competition claim or a false designation of origin claim under Section 43(a) of the Lanham Act, the plaintiff must allege (1) that it has a valid mark entitled to protection under the Act, and (2) that the defendant's actions are likely to cause confusion. SeeLVL XIII Brands, Inc. v. Louis Vuitton Malletier S.A. , 209 F. Supp. 3d 612, 649 (S.D.N.Y. 2016), aff'd , 720 F. App'x 24 (2d Cir. 2017) (false designation of origin and unfair competition claims); Bubble Genius , 239 F. Supp. 3d at 601 (unfair competition claim); Genometrica Research Inc. v. Gorbovitski , No. 11-cv-5802, 2013 WL 394892, at *13 (E.D.N.Y. Jan. 31, 2013) (false designation of origin claim); Toy Mfrs. of Am., Inc. v. Helmsley-Spear, Inc. , 960 F. Supp. 673, 678 (S.D.N.Y. 1997) (false designation of origin claim). a. Protectable Trade Dress
This does not demonstrate actual confusion because "the correct test is whether a consumer who is somewhat familiar with the plaintiff's [dress] would likely be confused when presented with defendant's [dress] alone." Toy Mfrs. of Am., Inc. v. Helmsley-Spear, Inc., 960 F. Supp. 673, 681 (S.D.N.Y. 1997) (Scheindlin, J.) (internal quotation marks omitted) (emphasis added). In addition, Ms. Getz, a potential consumer who shares an apartment with a KIND employee, selected a MOJO bar, believing it to be a KIND bar, from a bowl of snacks in her apartment. (Getz Decl. ¶¶ 4-8).
The plaintiff urges this interpretation upon the Court by arguing that the so-called "safe distance" rule applies because this Court has found the defendant to be a demonstrated infringer, thereby permitting the Court to order the defendant to desist even from conduct that would otherwise be lawful. Toy Mfrs. Of Am. v. Helmsley-Spears, Inc., 960 F. Supp. 673 (S.D.N.Y. 1997). Although such a broad prohibition would be within this Court's authority, that is not the effect of the injunction entered in this case.
"Generally, once a likelihood of confusion is shown for a trademark or trade dress infringement claim, the requisite irreparable harm is established." Tactica Int'l. Inc. v. Atlantic Horizon Int'l. Inc., 154 F. Supp.2d 586, 604 (S.D.N.Y. 2001);see also Toy Mfrs. of Am. v. Helsley-Spear, Inc., 960 F. Supp. 673, 678 (S.D.N.Y. 1997) (a presumption of irreparable harm arises where "`there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question'") (quoting Joseph Scott Co. v. Scott Swimming Pools, Inc., 764 F.2d 62, 66 (2d Cir. 1985)); Fun-Damental Too, Ltd., 111 F.3d 993, 999 ("[A] showing of a high probability of confusion creates a presumption of irreparable harm"). As the court discussed above, plaintiffs have made a strong showing of a likelihood of confusion.
Generally, once a likelihood of confusion is shown for a trademark or trade dress infringement claim, the requisite irreparable harm is established. See Toy Mfrs. of Am. v. Helmsley-Spear, Inc., 960 F. Supp. 673, 678 (S.D.N.Y. 1997) (a presumption of irreparable harm arises where "'there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.'") (quoting Joseph Scott Co. v. Scott Swimming Pools, Inc., 764 F.2d 62, 66 (2d Cir. 1985)); see alsoTough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 967 (2d Cir. 1995).
"A Court may find infringement has occurred based on confusion that creates initial customer interest, even if no final sale is completed as a result." Toy Mfrs. Of Am. V. Helmsley-Spear, Inc., 960 F. Supp. 673, 679 (S.D.N.Y. 1997) (citing Mobil Oil, 818 F.2d at 260). See also Icon Solutions, Inc. v. Ikon Office Solutions, Inc., 1998 U.S. Dist. LEXIS 8705, at *25 (E.D.Pa. 1998).
But even here plaintiff fails. Plaintiffs trade dress claim is that certain characteristics of its upcoming show — particularly the staging in August before a live California audience of robotic combat that adheres to certain rules governing the competition — constitute protectable trade dress, see Toy Manufacturers of Am. v. Helmsley-Spear, Inc., 960 F. Supp. 673 (S.D.N.Y. 1997), and that defendants have infringed this trade dress by incorporating many of the same elements into their BattleBots event. Even assuming arguendo that this states a claim for trade dress infringement, the Court finds that plaintiff has not demonstrated any likelihood of confusion between the trade dress of plaintiffs show and that of defendants' show.