(quoting Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 269 F.3d 114, 118 (2d Cir. 2001)). A product's trade dress can include “features such as size, shape, color or color combinations, texture, or graphics.” Eliya, Inc. v. Kohl's Dep't Stores, No. 06 Civ. 195, 2006 WL 2645196, at *2 (S.D.N.Y. Sept. 13, 2006) (quoting Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 967 (2d Cir. 1995)).

Holding a "copyright in a pictorial representation of a useful article does not vest the owner of the picture with a derivative copyright in the useful article itself." Gusler v. Fischer , 580 F. Supp. 2d 309, 315 (S.D.N.Y. 2008) (quoting Eliya, Inc. v. Kohl's Dept. Stores , No. 06 Civ 195(GEL), 2006 WL 2645196, at *9 (S.D.N.Y. Sept. 13, 2006) ); id. ("[The plaintiff] holds a copyright in a technical drawing of a useful article, which does not preclude [the] [d]efendants’ manufacturing ... of the article itself."); Espiritu , 284 F. Supp. 2d at 433, 435–36 (finding that copyright protection does not extend to structures built from technical drawings, even where the defendant stipulated to using unauthorized copies of the technical drawings). Plaintiffs cite Nino Homes for the opposite conclusion: that "one may construct a house which is identical to a house depicted in copyrighted architectural plans, but one may not directly copy those plans and then use the infringing copy to construct the house."

Because functionality is a question of fact, Eliya, Inc. v. Kohl's Dep't Stores, No. 06 Civ 195 (GEL), 2006 WL 2645196, at *4 (S.D.N.Y. Sept. 13,2006), it is premature to conclude that a plaintiff has failed to establish functionality at the motion to dismiss stage. See Axis Imex, Inc. v. Sunset Bay Rattan, Inc., No. C 08-3931 RS, 2009 WL 55178, at *3 (N.D. Cal. Jan. 7, 2009).

To plead that Defendant violated Section 43(a), the Complaint must allege: (1) Plaintiffs' trade dress is “distinctive as to the source of its goods, and therefore entitled to protection,” (2) Defendant's trade dress infringes on Plaintiffs' trade dress by creating “a likelihood of confusion,” and (3) Plaintiffs' trade dress is “not functional.” Kaufman & Fisher Wish Co., Ltd. v. F.A.O. Schwarz, 184 F.Supp.2d 311, 316 (S.D.N.Y. 2001) (cleaned up), aff'd, 51 Fed.Appx. 335 (2d Cir. 2002). The distinctiveness requirement can be met by plausibly alleging the trade dress is “inherently distinctive” or has acquired “secondary meaning.” Id. at 317; see also Eliya, Inc. v. Kohl's Dep't Stores, No. 06 CIV.195(GEL), 2006 WL 2645196, at *2 (S.D.N.Y. Sept. 13, 2006).

To state a deceptive trade practices claim under N.Y. Gen. Bus. L. § 349, “a plaintiff must allege that ‘(1) the defendant's deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.'” Eliya, Inc. v. Kohl's Dep't Stores, No. 06 Civ. 195 (GEL), 2006 WL 2645196, at *7 (S.D.N.Y. Sept. 13, 2006) (quoting Maurizio v. Goldsmith, 230 F.3d 518, 521 (2d Cir. 2000)). As courts in the Second Circuit have recognized, § 349 “is, at its core, a consumer protection device,” Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 264 (2d Cir. 1995), “not a tool to resolve disputes between competitors.

And NSI alleges that it has used the same packaging since at least 2017, which is a long enough period of time to allege secondary meaning. See, e.g., Eliya, Inc, v. Kohl's Dep't Stores, No. 06-cv-195, 2006 WL 2645196, at *1, 4 (S.D.N.Y. Sept. 13, 2006) (finding that two years was enough time to allege secondary meaning). NSI has therefore alleged the first, third, fourth and sixth factors in the secondary meaning inquiry, which is sufficient to survive a motion to dismiss.

“There is no requirement that a plaintiff address the Polaroid factors in its pleading.” Eliya, Inc. v. Kohl's Dep't Stores, No. 06-cv-195, 2006 WL 2645196, at *3 n.2 (S.D.N.Y. Sept. 13, 2006) (Lynch, J.).

A product's trade dress includes "features such as size, shape, color or color combinations, texture, or graphics." Eliya, Inc. v. Kohl's Dep't Stores, No. 06 Civ 195, 2006 WL 2645196, at *2 (S.D.N.Y. Sept. 13, 2006) (quoting Tough Traveler, Ltd. v. Outbound Prods., 60 F.3d 964, 967 (2d Cir. 1995)).

A likelihood of confusion is determined through application of the eight Polaroid Factors. "There is no requirement that a plaintiff address the Polaroid factors in its pleading." Eliya, Inc. v. Kohl's Dep't Stores, No. 06 Civ. 195, 2006 WL 2645196, at *3 n.2 (S.D.N.Y. Sept. 13, 2006). "Likelihood of confusion is a fact-intensive analysis that ordinarily does not lend itself to a motion to dismiss."

A likelihood of confusion is determined through application of the eight Polaroid Factors. “There is no requirement that a plaintiff address the Polaroid factors in its pleading.” Eliya, Inc. v. Kohl's Dep't Stores, No. 06 Civ. 195, 2006 WL 2645196, at *3 n.2 (S.D.N.Y. Sept. 13, 2006). “Likelihood of confusion is a fact-intensive analysis that ordinarily does not lend itself to a motion to dismiss.”