Furthermore, as Crevelt testified, such agreements are no more than standard "boilerplate" agreements which are commonly used and adapted in a variety of business transactions. Trial Tr. at 782.
B. Trade Dress Infringement
Trade dress is "the design and appearance of the product as well as that of the container and all elements making up the total visual image by which the product is presented to consumers." Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 31 (2d Cir. 1995). In order to be eligible for protection under Section 43(a), a plaintiff must show "(a) that its trade dress is entitled to protection under the Act, and (b) that the defendant's dress infringes on the plaintiff's dress by creating a likelihood of confusion." Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 377 (2d Cir. 1997). To be entitled to protection under the Act, plaintiff's trade dress must either be inherently distinctive or be shown to have acquired distinctiveness through "secondary meaning." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 774, 112 S. Ct. 2753, 120 L. Ed. 2d 615 (1992); EFS Marketing, Inc. v. Russ Berrie & Co., 76 F.3d 487, 490 (2d Cir. 1996). In the event the plaintiff demonstrates that it is entitled to protection, the defendant can still avoid liability by showing that "the similar arrangement of features is functional." Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 377 (2d Cir. 1997) (quoting Stormy Clime Ltd. v. ProGroup, Inc., 809 F.2d 971, 974 (2d Cir. 1987)).
Although most courts have held that proof of a mere likelihood of confusion is sufficient to obtain injunctive relief for unfair competition under Section 43(a), it has generally been held that proof of actual confusion is required to obtain a damages remedy. 20th Century Wear, Inc. v. Sanmark-Stardust, Inc., 747 F.2d 81, 93 (2d Cir. 1984), cert. denied, 470 U.S. 1052, 84 L. Ed. 2d 818, 105 S. Ct. 1755 (1985); Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 79 (2d Cir. 1981); Skil Corp. v. Rockwell Int'l Corp., 375 F. Supp. 777, 783 (N.D. Ill. 1974).
Here, INI has offered no evidence describing the elements of its trade dress. Furthermore, INI has failed to establish that its alleged trade dress has a consistent look or has acquired a secondary meaning in the marketplace by which it is identified with INI. Rather, INI asserts generally that the appearance of the Orlando Facility as designed by INI is trade dress protected by Section 43(a). INI claims that although the appearance of the Orlando Facility is one of many "concrete expressions" of how a CTO should look, the Satellite Defendants chose to use INI's design. INI further claims that the trade dress of the Orlando Facility is both inherently distinctive, because it suggests the ticket counters at an airport, and has acquired secondary meaning. Finally, INI claims that there was actual confusion. These allegations are wholly unsupported by the record.
First, INI's contention that its trade dress is "inherently distinctive" because "it suggests the ticket counters at an airport," see Pls.' Proposed Conclusions of Law P 14, does not withstand scrutiny. A facility that emulates the look and feel of ticket counters at any airport is common or generic, and not inherently distinctive. See Trial Tr. at 404-05.
Second, INI asserts that both the general public and the airlines were confused as to the origin of Satellite's allegedly infringing facilities. With respect to the public, INI does not offer evidence to support a claim of confusion. Moreover, David Kleiman expressly testified that such a claim would be "absurd," and that INI would not make any such claim. Trial Tr. at 407-08. As to the airlines, David Kleiman testified during his deposition as follows:
Q. How about Orlando? Can you name a single airline or member of the public that believes that the Orlando ticket office is being operated by INI rather than Satellite?