United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
Enterprises, LLC d/b/a Body Back Company (“AJB”
or “Plaintiff”), brought this action against
Defendant, BackJoy Orthotics, LLC (“BackJoy” or
“Defendant”), alleging federal and state claims
of trade dress infringement, unfair competition, breach of
contract and unjust enrichment. Compl., ECF No. 1. On
December 16, 2016, the Court granted BackJoy's 
Motion to Dismiss all claims under Rule 12(b)(6) and allowed
AJB to file an Amended Complaint addressing the deficiencies
outlined in the Court's ruling. Mot. to Dismiss Ruling,
ECF No. 35.
filed an Amended Complaint on January 17, 2017. Am. Compl.,
ECF No. 36. BackJoy moved to dismiss AJB's Amended
Complaint on February 7, 2017 under Rule 12(b)(6), arguing
that the Amended Complaint suffers from the same deficiencies
as the original Complaint and seeking dismissal, with
prejudice, of all claims. Def. Mot. to Dismiss, ECF No. 39.
reasons outlined below, BackJoy's Motion to Dismiss is
GRANTED IN PART AND DENIED IN PART.
BackJoy's motion is denied as to AJB's federal
claims, and those claims will be permitted to proceed at this
time. BackJoy's motion is granted, however, as to
AJB's state law claims. All state law claims are
dismissed without prejudice to refiling, provided that AJB
specifies, in accordance with the Court's previous
ruling, which state's substantive law applies to its
FACTUAL AND PROCEDURAL BACKGROUND
factual allegations in this case are clearly laid out in the
Court's previous ruling on BackJoy's  Motion to
Dismiss. See Mot. to Dismiss Ruling, ECF No. 35. The
Court assumes familiarity with AJB's factual claims for
purposes of this opinion.
AJB's Original Complaint and the Court's Motion to
original Complaint, AJB alleged two federal claims: (1)
federal unfair competition based on trade dress infringement;
and (2) federal unfair competition based on “multiple
misrepresentations.” Compl., ECF No. 1. The Complaint
also alleged numerous state law claims, including various
forms of unfair competition as well as breach of contract and
unjust enrichment claims, without specifying which
state's common law would govern those claims.
Id. In support of its claims, AJB alleged that
BackJoy impermissibly copied its S-shaped trigger point
massager (“Body Back massager”), duplicating
several design features that constitute AJB's claimed
trade dress, and sold that device on the market as its own.
Id. In the Court's  Motion to Dismiss
ruling, the Court dismissed all federal claims asserted in
AJB's original Complaint, without prejudice, for failure
to state a claim under Rule 12(b)(6). Mot. to Dismiss Ruling,
ECF No. 35.
AJB's first federal claim of trade dress infringement,
the Court noted in its ruling that the Complaint lacked the
requisite specificity regarding the alleged distinctiveness
of the claimed trade dress. Id. at 6-7. The Court
also found that AJB failed to allege specifically two of the
three elements required for a viable trade dress infringement
claim: (1) that the claimed trade dress was not
“functional, ” and (2) that the claimed trade
dress has acquired a secondary meaning. Id. at 7-11.
As to AJB's second federal claim of unfair competition,
the Court found that, without a protectable trade dress in
connection with the product at issue, AJB could not state a
plausible unfair competition claim. Id.
Court dismissed both federal claims accordingly. Id.
The Court also declined to exercise supplemental jurisdiction
over AJB's state law claims, having dismissed all federal
claims. Id. The Court's ruling was without
prejudice to filing an Amended Complaint within 30 days.
Id. In connection with AJB's state law claims,
the Court specifically ordered that, “[s]hould AJB
choose to file an Amended Complaint in this matter, it is
also instructed to include specific allegations regarding the
applicable state substantive law in connection with its state
common law claims.” Id.
AJB's Amended Complaint
filed an Amended Complaint on January 17, 2017, within the
time period specified the Court in its motion to dismiss
ruling. Am. Compl., ECF No. 36. In its Amended Complaint, AJB
brings the same federal and state law claims that it
attempted to assert in the original Complaint and sets forth
the same general allegations against BackJoy. Id. at
¶¶ 91-100. In light of the deficiencies described
in the Court's ruling, however, AJB supplemented its
Amended Complaint with additional detail. Id.
significant portion of this additional detail does not relate
directly to the reasons given by the Court for dismissal, the
Amended Complaint does add some substance in three key areas
with respect to AJB's federal claims. First, the Amended
Complaint adds specific allegations regarding how the claimed
trade dress is distinctive. In its Amended Complaint, AJB
focuses the description of its claimed trade dress,
emphasizing the appearance of the device: “which, by
virtue of its S-shaped frame, in combination with an arm
supporting a massage nub, is distinctive from other cane
massage tool products on the market....” Id.
at ¶ 2; see also Id. at ¶ 14 (defining
“Trade Dress” as “[t]he appearance of the
Body Back Original, more particularly, its shape defining a
frame supporting massage nubs, including an S-shaped frame
portion and at least one substantially straight frame
arm”). AJB also submits numerous images of other cane
massagers available on the market, see Id. at ¶
17, alleging that its Body Back massager is visibly distinct
from all these other products, thus confirming the
distinctiveness of its trade dress.
citing these images and allegations regarding other products,
the Amended Complaint specifically alleges that its claimed
trade dress - namely, the product's shape and the
specific positioning of its massage nubs - is non-functional.
Id. The Amended Complaint describes several other
cane massagers available on the market and specifically
confirms that the described “alternative configurations
of other tools on the market perform the same function as the
Body Back Original.” Id. at 8.
the Amended Complaint specifically asserts that
“Plaintiff and its predecessor have incurred great
expense and have devoted substantial resources to make the
Body Back Original extremely well known and readily
recognizable to customers.” Id. at ¶ 31.
In support of this allegation, AJB includes various details
regarding its alleged marketing and advertising efforts.
See Id. at ¶¶ 32-33 (“Body Back
spent approximately $500, 000 in advertising the Body Back
Buddy trigger point massage tool on Amazon, Google and
Facebook... Body Back and its Predecessor have also
advertised the Body Back Buddy on Pinterest, Instagram and
Twitter.”); id. at ¶ 34 (“There are
very many popular videos featuring the Body Back Original ...
available on You Tube and the Body Back website, all of which
have acted to build the goodwill of the business of Plaintiff
in the Body Back Buddy and increase the recognizability and
iconic nature of the Body Back Original and its Trade
Dress.”); id. at ¶ 45 (“Facebook
cofounder Dustin Moscovitz... provided an unsolicited, unpaid
and enthusiastic testimonial for ‘the strangely shaped
massage device he swears by....'”).
respect to AJB's state law claims, the Amended Complaint
does not specify a particular state substantive law under
which the claims are brought. Instead, AJB includes reference
to three different states - Connecticut, Oregon and Colorado
- asserting that AJB would be entitled to ...