take plaintiff's allegations that defendant copied its
copyrighted works (Complaint ¶¶ 28, 38) as true. A motion to
dismiss is properly granted only if it is clear that no relief
can be granted under any set of facts that could be proved
consistently with the allegations of the complaint. See Briley
v. Blackford, No. 89 Civ. 8365 at n. 10, 1990 WL 124341
(S.D.N.Y. Aug. 21, 1990). For this reason, defendants' motion
to dismiss the copyright infringement claims in Counts III and
IV is denied.
III. Counts VI and VII
Count VI alleges common law trademark infringement, in that
defendants have copied the distinctive "trade dress" of
plaintiff's product in violation of plaintiff's common law
trademark rights. Plaintiff's Memorandum in Opposition at 12.
Count VII alleges unfair competition under New York common law,
based on the same allegations asserted under Counts V and
VI.*fn4 Defendants argue that Counts VI and VII are the same
claim and move for dismissal of one or the other on the ground
that they are duplicative. Plaintiff states that "the basis for
[Count] VI is that defendants have copied the distinctive trade
dress of plaintiff's product in violation of Franklin's common
law trademark rights." Plaintiff's Memorandum in Opposition at
12. Plaintiff characterizes Count VII as an action for unfair
competition for "intentional copying of trade dress" of
plaintiff's product under the New York Law of unfair
Trademark infringement is a category of the common law
concerning unfair competition. Infringement of trade dress is
also a category of unfair competition under New York common
law. See Perfect Fit Indus., Inc. v. Acme Quilting Co.,
618 F.2d 950 (2d Cir. 1980), cert. denied, 459 U.S. 832, 103 S.Ct.
73, 74 L.Ed.2d 71 (1982). In its memorandum of law, plaintiff
states that its common law trademark claim is based upon
copying of its product's trade dress and neither distinguishes
Count VI from Count VII nor cites any authority for the
proposition that the two claims are separate. Plaintiff's
Memorandum at 12. Since imitation of trade dress is a tort
included under the law concerning "unfair competition," and for
redress of which the plaintiff is entitled to the same relief,
Count VI is hereby dismissed as duplicative of Count VII.
IV. Count VIII
In Count VIII, plaintiff seeks damages for a violation of the
New York anti-dilution statute, N.Y.Gen.Bus.L. § 368-d.
Plaintiff lacks standing to bring such a claim. See Weight
Watchers Int'l, Inc. v. Stouffer Corp., 744 F. Supp. 1259, 1284
(S.D.N.Y. 1990) (the purpose of the anti-dilution statute is to
protect distinctive marks from being used on dissimilar,
non-competing products); Allied Maintenance Corp. v. Allied
Mechanical Trades, Inc., 42 N.Y.2d 538, 544, 369 N.E.2d 1162,
399 N.Y.S.2d 628 (1977). Secondly, the remedy sought by
Franklin under Count VIII is monetary and the anti-dilution
statute provides only for injunctive relief, not monetary
damages. See MasterCard Int'l, Inc. v. Arbel Corp., 13
U.S.P.Q.2d 1958, 1989 WL 125781 (S.D.N.Y. 1989). Since
plaintiff lacks standing under the anti-dilution statute and
does not seek injunctive relief, defendants' motion to dismiss
Count VIII is granted. Id.
V. Count IX
In Count IX, plaintiff claims damages based on defendants'
alleged violation of the New York Consumer Protection Law,
N YGen.Bus.L. § 349, but it has not alleged injury to
consumers or to the public interest and thus has not stated a
claim under the statute. See MasterCard Int'l, supra (§ 349
does not create a private cause of action unless the action is
brought by a consumer or on behalf of a class of consumers);
National Org. for Women v. State Div. of Human Rights, 34
N Y2d 416, 314 N.E.2d 867, 358 N.Y.S.2d 124 (1974). Plaintiff
is bringing this action for its own benefit and not as a
electronic spelling aids nor on behalf of those consumers.
MasterCard Int'l, supra. More importantly, however, the
gravamen of the complaint is not alleged to be consumer injury
or harm to the public interest. Accordingly, the motion to
dismiss Count IX is granted. See Weight Watchers Int'l, 744
F. Supp. at 1285; Azby Brokerage, Inc. v. Allstate Ins. Co.,
681 F. Supp. 1084, 1089 (S.D.N.Y. 1988).
For the reasons stated above, Counts VI, VIII and IX are
dismissed as are all counts against defendant Lowinger, the
latter without prejudice to plaintiff's filing an amended
complaint including Lowinger after discovery.
IT IS SO ORDERED.