No, the court said Fair Wind could not sue for this. Just because someone copies your business idea doesn't mean they broke trademark law. The court explained that 'trade dress' protects a unique look that makes people think of your company, like the shape of a Coke bottle. Fair Wind didn't describe a unique look; it just listed parts of its business operations. The things VISS copied—like using certain boats and teaching methods—are 'functional,' meaning they are useful for running a good sailing school. The law allows competitors to copy useful ideas. You can't just bundle a bunch of useful business practices together and call it a legally protected 'look.'

No, Fair Wind did not explain its case well enough. For the claim about copying style, Fair Wind didn't clearly say what made its style unique. The things it mentioned, like the kind of boats and teaching methods, seem more practical than unique. Practical things can't be protected as trade dress. For the claim about unfairly making money, Fair Wind said the Defendants copied them and 'have been enriched,' but didn't give any details about how the Defendants made money that should have gone to Fair Wind. Without those details, Fair Wind didn't properly make an unfair enrichment claim. So the lower court was right to dismiss both claims.

"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."

The Third and Fourth Circuits have since held that the standard in Octane Fitness also applies to attorney fees awards under the Lanham Act.

Beyond that, courts generally "have looked to the interpretation of the patent statute for guidance in interpreting" the attorney's fees provision in the Lanham Act.

The Supreme Court has held that an "exceptional" case is "one that stands out from others with respect to the substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated."

Even viewing the Second Amended Complaint in the light most favorable to the DDL and ignoring the above items that are not "dress," the Second Amended Complaint does not "articulat [e] the specific elements which comprise its distinct dress,"

The Tenth Circuit has noted that "[s] everal courts have adopted a requirement that a plaintiff seeking to protect its unregistered trade dress do more than just point to the `overall look'of its trade dress; it must `articulat [e] the specific elements which comprise its distinct dress

—identifying elements of trade dress infringement, including that the infringing design be "nonfunctional

A case is now "exceptional" in this Circuit when "(a) there is an unusual discrepancy in the merits of the positions taken by the parties or (b) the losing party has litigated the case in an `unreasonable manner.'"

—importing the definition of "exceptionality" into its interpretation of § [1117 (a)] and holding that the district court should apply the Octane Fitness standard when considering the award of attorney's fees under this provision

No, a sailing school does not state a claim for trade dress infringement by alleging a competitor copied functional business methods. To be protectable, a trade dress must consist of specific, articulated, non-functional elements that create a distinct overall visual impression identifying the source, which Fair Wind failed to plead. The court reasoned that Fair Wind did not articulate the specific elements of its trade dress, instead presenting a 'hodgepodge of unconnected pieces of its business' like its curriculum and choice of boats. These elements do not create a 'composite visual effect' or overall look. Even if they did, the court found the alleged dress was plainly functional. Features like the type of boat, curriculum, and itineraries are essential to the quality and purpose of the service, rather than being merely ornamental features that identify Fair Wind as the source. The court also adopted the Supreme Court's standard from *Octane Fitness* for awarding attorneys' fees under the Lanham Act, holding that a case is 'exceptional' if it 'stands out from others' due to substantive weakness or unreasonable litigation conduct, eliminating the circuit's prior requirement of finding culpable conduct like bad faith.

No, Fair Wind's complaint does not adequately allege claims for trade dress infringement or unjust enrichment. Regarding the trade dress claim, Fair Wind failed to articulate the specific elements that comprise its trade dress. The alleged trade dress, which includes curriculum, itineraries, boats, and marketing, appears to be functional rather than distinctive. Functional elements are not protected as trade dress under the Lanham Act. As to the unjust enrichment claim, while Fair Wind alleges that Defendants copied its business and that Defendants "have been enriched," the complaint lacks any specific factual allegations regarding how Defendants were enriched at Fair Wind's expense, such as by gaining profits that would have otherwise gone to Fair Wind. Without more specificity, Fair Wind has not adequately pleaded an unjust enrichment claim. The District Court therefore properly dismissed both the trade dress and unjust enrichment claims.

Fair Wind Sailing, Inc. v. Dempster

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