Judge Ross Examines Morass Of Pleadings And Refines Dispute To Supported Claims Of Patent, Copyright, And Trade Dress Infringement

In an earlier post today we reported on the Third Amended Complaint filed by Lisa Duer ("Duer"), a resident of Woodstock, Georgia, alleging patent infringement, trademark infringement, copyright infringement, and trade dress infringement action against Bensussen Deutsch & Associates, Inc. ("BDA"), a Washington corporation, and Eli Lilly and Company ("Lilly"), an Indiana corporation (collectively the "Defendants"). This post addresses Judge Eleanor L. Ross's Order of July 8, 2015, which gave rise to that filing.

On July 8, Judge Ross ruled on three motions, one filed by Defendants and two by Plaintiffs. The Court granted in part and denied in part the motion to dismiss of the Defendants and the motion to allow a Second Amended Complaint by Duer and denied Duer's motion to file the Third Amended Complaint "as currently submitted." However, the Court allowed a more limited Third Amended Complaint - "limited to the inclusion of Plaintiff's additional trademark infringement claim."

The procedural history of the case includes an original motion to dismiss and a response which included a Proposed Second Amended Complaint to cure deficiencies, which Defendants contended remained uncured. This gave rise to Plaintiff's request for leave to file a Third Amended Complaint. In denying the motion to file the Third Amended Complaint as submitted, the Court addressed the issues that remained for decision in the Second Amended Complaint. The Court assumed the facts alleged by Plaintiff were true and those facts, as contained in the Third Amended Complaint filed in accordance with the Court's Order, were set forth in our prior post. The picture of Plaintiff's product is repeated here, and the facts as alleged by Plaintiff can be reviewed in our prior post.

In reviewing the motion to dismiss the Court referred to the so-called "plausibility standard" and distinguished that standard from a "probability requirement" citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007): "Even if it is extremely unlikely that a plaintiff will recover, a complaint may nevertheless survive a motion to dismiss for failure to state a claim, and a court reviewing such a motion should bear in mind that it is testing the sufficiency of the complaint and not the merits of the case." P. 5.

The Court first addressed trade dress infringement as alleged in Count III of the Second Amended Complaint. In order to state a trade dress infringement claim, the following elements must be...