Luv N' Care, Ltd. et al v. Regent Baby Products Corp.

Filing 114

OPINION AND ORDER: #103803 re: 89 MOTION for Summary Judgment For the foregoing reasons, Regent's motion for partial summary judgment is granted. The Clerk of the Court is directed to close this motion(Docket No. 89). A conference is scheduled for January 6, 2014, at 4:30 p.m. in Courtroom 15C. (Signed by Judge Shira A. Scheindlin on 12/11/2013) (js) Modified on 12/11/2013 (ca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

._--------------------------------------------------

~

LUV N' CARE, LTD. and ADMAR
INTERNATIONAL, INC.,
Plaintiffs,

OPINION AND ORDER

- against­

10 Civ. 9492

REGENT BABY PRODUCTS CORP.
d/b/a/ BABY KING,
Defendant.
._-------------------------------------------------- )(

SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Luv n' Care, Ltd. and Admar International, Inc. (collectively, "LNC")

bring this infringement action against Regent Baby Products Corp. d/b/a Baby
King ("Regent"). LNC sells sippy cups and other products for children in the
United States and internationally under the NUBY brand name, or through private
labels including Precious Moments and Parent's Choice. I Admar International,

See Regent Baby Products' Revised Statement of Undisputed Material
Facts Pursuant to Local Civil Rules 56.1 ("Def. 56.l"),-r,-r 187-189.

1

Inc. owns the interest in LNC’s trademarks and trade dress.2 Regent is also a baby
products company and sells its products under the Baby King brand name, or
through private labels including Fisher Price and Sesame Beginnings.3
LNC alleges that Regent has infringed its no-spill drinking cup design
patent and corresponding trade dress.4 LNC also alleges unfair competition and
tortious interference with prospective business relations under New York state law.
Regent now moves for partial summary judgment on LNC’s trade dress
infringement and tortious interference claims. For the reasons set forth below,
Regent’s motion for partial summary judgment is granted.
II.

BACKGROUND
Regent’s motion for summary judgment on trade dress infringement is

2

See Second Amended Complaint (“SAC”) ¶ 19.

3

See Def. 56.1 ¶¶ 2 and 6.

4

LNC originally alleged infringement of fourteen different products,
including various no-spill drinking cups, pacifiers, pacifier holders, teething keys,
and a food storage container. LNC voluntarily withdrew its claims as to nine of
those products on October 23, 2013. See 10/23/13 Stipulation of Partial Dismissal
With Prejudice and 10/23/13 Plaintiffs’ Memorandum of Law in Opposition to
Defendant’s Motion For Summary Judgment (“Pl. Opp.”), at 1, n.1. LNC now
brings infringement claims as to five products – 1) the “Gripper Cup” silicone
spout cap and cup combination, 2) the “Gripper Cup” silicone spout cap alone, 3)
the “Flip-It” flip-top cap, 4) the “Hard Spout” cap and cup combination, and 5) the
“Grip n’Sip” cap and twin-handle cup combination. See SAC ¶¶ 49-77 and Pl.
Opp. at 1.
2

limited to LNC’s claims as to the flip-top cap and the hard spout cup and cap
combination.5 “LNC has been selling its hard top design for approximately fifteen
years, and its flip-top design for . . . over fourteen years.”6 Since that time, “LNC
has sold more than $21 million of its flip-top products . . . in the United States, and
more than $58 million of its hard top products in the United States.”7 LNC claims
that numerous products manufactured by Regent and sold under both its brand
name and private labels infringe upon its protected trade dress.8
LNC also alleges that Regent’s sale of allegedly infringing no-spill
cups has tortiously interfered with its prospective business relations.9 Primarily,
LNC claims that Regent has “acted to induce [LNC’s] customers including, but not
limited to, Dollar General Corporation, to purchase the [infringing] no-spill cups . .
. instead of [LNC’s] authorized, legitimate no-spill cups . . . with the sole purpose
of harming [LNC]” or by using “dishonest, unfair or improper means to cause

5

See 10/29/13 Regent Baby Products’ Revised Memorandum of Law in
Support of Its Motion for Partial Summary Judgment (“Def. Mem.”), at 2.
6

10/23/13 Declaration of Nouri E. Hakim, Chief Executive Officer of

LNC, ¶ 10.
7

Id. ¶ 12.

8

See SAC ¶¶ 62-72.

9

See id. ¶¶ 149-156.
3

harm and injury to [LNC].”10
III.

LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate “only where, construing all the

evidence in the light most favorable to the non-movant and drawing all reasonable
inferences in that party’s favor, there is ‘no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.’” 11 “A fact is
material if it might affect the outcome of the suit under the governing law, and an
issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 12
“[T]he moving party has the burden of showing that no genuine issue
of material fact exists and that the undisputed facts entitle him to judgment as a
matter of law.”13 “When the burden of proof at trial would fall on the non-moving
party, it ordinarily is sufficient for the movant to point to a lack of evidence to go

10

Id. ¶¶ 152-153.

11

Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 692
(2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)) (other quotations omitted).
12

Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133
S. Ct. 2675 (2013) (quotations and alterations omitted).
13

Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations

omitted).
4

to the trier of fact on an essential element of the non[-]movant’s claim.”14 The
burden then “shifts to the non[-]moving party to present specific evidence showing
a genuine dispute.”15 This requires “‘more than simply show[ing] that there is
some metaphysical doubt as to the material facts,’”16 and the non-moving party
cannot “rely on conclusory allegations or unsubstantiated speculation.”17
In deciding a motion for summary judgment, “[t]he role of the court is
not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.”18 “‘Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’”19

14

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).

15

Id.

16

Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
17

Id.

18

Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.

2012).
19

Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
5

IV.

APPLICABLE LAW
A.

Trade Dress Infringement Under the Lanham Act

The Lanham Act provides:
(1)

Any person who, on or in connection with any goods or
services, or any container for goods, uses in commerce any
word, term, name, symbol, or device, or any combination
thereof, or any false designation of origin, false or
misleading description of fact, or false or misleading
representation of fact, which-(A) is likely to cause confusion, or to cause mistake, or
to deceive as to the affiliation, connection, or
association of such person with another person, or as
to the origin, sponsorship, or approval of his or her
goods, services, or commercial activities by another
person . . .
shall be liable in a civil action by any person who believes
that he or she is or is likely to be damaged by such act.20

A plaintiff asserting a trademark infringement claim must show first
that its trade dress or trademark is a protectable interest under the Lanham Act, and
second that there is a likelihood of confusion.21 If a plaintiff offers no evidence of
a protectable interest, a court need not consider likelihood of confusion.22

20

15 U.S.C. § 1125(a).

21

See Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108,
115 (2d Cir. 2006).
22

See Thompson Med. Co. v. Pfizer, Inc., 753 F.2d 208, 217 (2d Cir.
1985) (“If, however, secondary meaning cannot be established, [the product
claiming protection] will be ineligible for protection, and our analysis will
conclude without having to address the likelihood of confusion. Absent secondary
6

Moreover, a Lanham Act claimant must describe its protectable interest with some
clarity — it must offer “‘a precise expression of the character and scope of the
claimed trade dress.’”23
In order to succeed on a claim of trade dress infringement under
Section 43(a) of the Lanham Act, a plaintiff must demonstrate: (1) that its claimed
mark is either inherently distinctive or has acquired distinctiveness through
secondary meaning; (2) that there is a likelihood of confusion between its trade
dress and the defendant’s; and (3) that the trade dress is non-functional.24 Inherent
distinctiveness is evaluated as follows:
[T]rade dress is classified on a spectrum of increasing
distinctiveness as generic, descriptive, suggestive, or
arbitrary/fanciful. Suggestive and arbitrary or fanciful trade dress
are deemed inherently distinctive and thus always satisfy the first
prong of the test for protection. A descriptive trade dress may be
found inherently distinctive if the plaintiff establishes that its mark
has acquired secondary meaning giving it distinctiveness to the
consumer. A generic trade dress receives no Lanham Act

meaning, purchasers will not associate [the product] with a particular source of
origin. By definition, there could not be likelihood of confusion as to source.”).
23

Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 117 (2d Cir. 2001)
(quoting Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 381 (2d
Cir. 1997)).
24

See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769-70
(1992); Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999 (2d
Cir. 1997).
7

protection.25
To determine whether a trade dress has acquired distinctiveness
through secondary meaning, a court should consider six factors: “(1) advertising
expenditures, (2) consumer studies linking the mark to a source, (3) unsolicited
media coverage of the product, (4) sales success, (5) attempts to plagiarize the
mark, and (6) length and exclusivity of the mark’s use.”26 “[A]n idea, a concept or
a generalized type of appearance” is “generic” and not protected, even if the
proponent can prove secondary meaning.27 “[T]rade dress . . . composed entirely
of commonly used or functional elements . . . should be regarded as unprotectible
or ‘generic,’ to avoid tying up a product or marketing idea.”28
The likelihood of confusion inquiry “turns on whether ‘numerous
ordinary prudent purchasers are likely to be misled or confused as to the source of
the product in question because of the entrance in the marketplace of defendant’s

25

Fun-Damental Too, 111 F.3d at 999-1000 (citing Two Pesos, 505 U.S.
at 769-70 and LeSportsac, Inc. v. K Mart Corp., 754 F.2d 71, 76 (2d Cir. 1985)).
26

Cartier Inc. v. Jewelry, Inc., 294 Fed. App’x 615, 617 (2d Cir. 2008).

27

Jeffrey Milstein Inc., v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 32 (2d

Cir. 1995).
28

Yurman, 262 F.3d at 118 (quoting Milstein, 58 F.3d at 32).
8

mark.’”29 “[A] probability of confusion, not a mere possibility, must be found to
exist” in order to support a finding of infringement.30 Generally speaking,
establishing that probability is the plaintiff’s burden,31 which means that the
defendant typically does not need to disprove a likelihood of confusion.32 In
determining whether there is a likelihood of confusion, an eight-factor balancing
test should be applied.33

A finding of confusion need not be based on survey

evidence; confusion may be shown through statements.

29

Playtex Prods., Inc. v. Georgia-Pacific Corp., 390 F.3d 158, 161 (2d
Cir. 2004) (quoting Cadbury Beverages, Inc. v. Cott Corp., 73 F.3d 474, 477-78
(2d Cir. 1996)).
30

Gruner + Jahr USA Publ’g v. Meredith Corp., 991 F.2d 1072, 1077
(2d Cir. 1993).
31

See Lois Sportswear U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867,
871 (2d Cir. 1986).
32

See KP Permanent Make-up, Inc. v. Lasting Impression I, Inc., 543
U.S. 111, 121 (2004).
33

See Starbucks Corp. v. Borough Coffee, Inc., 588 F.3d 97, 115 (2d
Cir. 2009) (citing Polaroid Corp. v. Polarad Elec. Corp., 287 F.2d 492, 495 (2d
Cir. 1961)). The Polaroid factors include: (1) strength of the plaintiff’s mark; (2)
degree of similarity between plaintiff’s and defendant’s marks; (3) the competitive
proximity of the products; (4) the likelihood that either owner will bridge the gap;
(5) the sophistication of the buyers; (6) the quality of defendant’s product; (7)
actual confusion; and (8) the existence of bad faith. See id. None of these factors
is dispositive, and the above list is not exhaustive. See Streetwise Maps, Inc. v.
Vandam, Inc., 159 F.3d 739, 743 (2d Cir. 1998). Instead, they are intended to act
“as a useful guide” in determining if there exists a likelihood of confusion. Lois
Sportswear, 799 F.2d at 872.
9

B.

Tortious Interference Under New York State Law
A tortious interference claim requires a plaintiff to prove that: “(1) the

plaintiff had business relations with a third party; (2) the defendant interfered with
those business relations; (3) the defendant acted for a wrongful purpose or used
dishonest, unfair, or improper means; and (4) the defendant’s acts injured the
relationship.”34
IV.

DISCUSSION
A.

Trade Dress Infringement

Regent does not argue that LNC has failed to raise sufficient issues of
material fact as to secondary meaning or likelihood of confusion. Rather, Regent
argues that LNC’s claimed trade dress is unprotected under the Lanham Act
because it is generic. According to Regent, “cups just like LNC’s have been sold
for decades by other baby products companies” and its claims to trade dress rights
“cannot be taken seriously” in light of the many other similar products available on
the market.35 Regent argues that even if LNC were to raise sufficient issues of
material fact as to secondary meaning or likelihood of confusion, summary
judgment is required in Regent’s favor because under Second Circuit law, “‘a
34

Catskill Dev., LLC v. Park Place Entm’t, 547 F.3d 115, 132 (2d Cir.

2008).
35

Def. Mem. at 8.
10

showing of secondary meaning is insufficient to protect product designs that are
overbroad or generic.’”36
LNC responds that it does not claim “trade dress rights to the general
concept of a hard top cup or a flip-top cup” but rather “it claims rights to specific
designs of hard top and flip-top cups as described in [the] Second Amended
Complaint.”37 LNC further restates that it has raised sufficient issues of material
fact as to secondary meaning and likelihood of confusion to defeat summary
judgment.38
LNC describes the protected trade dress of its hard spout cup as
follows: “a custom-colored translucent, generally cylindrical shaped cup having a
slightly wider upper portion” with a “colored or tinted inner dome cap portion
sit[ting] on an outer ring cap portion . . . on the body of the cup; the inner dome
cap portion having a spout with a bulb-like base and a relatively pointed top.”39
Regent provides exhaustive evidence of numerous hard spout cups that have been
widely available on the market for over two decades, through submission of third

36

Id. at 10 (quoting Yurman, 262 F.3d at 117).

37

Pl. Opp. at 4.

38

See id. at 3-11.

39

SAC ¶¶ 71-72
11

party catalogs and websites of online retailers.40 Some of the hard spout cups
matching LNC’s trade dress description were sold by other manufacturers as early
as 1993 and 1994 – several years before LNC’s first hard-spout cup became
available for sale in 1998.41
LNC describes the protected trade dress of its flip-top cap as follows:
“the combination and arrangement of a flip-top ‘football helmet’ shaped cap, and a

40

See 9/16/13 Declaration of Roy Pomerantz, Chief Executive Officer
and General Counsel of Regent Baby Products (“9/16/13 Pomerantz Decl.”), ¶¶
110-121; 11/8/13 Declaration of Pomerantz (“11/18/13 Pomerantz Decl.”), ¶ 2.
See also Def. 56.1 ¶¶ 168-185. LNC objects to the admission of this evidence on
the ground that Regent provided no authentication for the cited catalogs and
websites and that the images are “inadmissible hearsay.” Plaintiffs’ Response to
Defendant’s Statement of Undisputed Material Facts Pursuant to Local Civil Rule
56.1, ¶¶ 168-185. The “appearance, contents, substance, internal patterns, or other
distinctive characteristics” of Regent’s proffered third party catalogs and webpages
are sufficient to authenticate them. Federal Rule of Evidence (“Rule”) 901(b)(4).
The catalogs and web pages show hard spout cups matching LNC’s trade dress
description listed for sale by third party manufacturers and retailers. This evidence
is not hearsay because it is not offered for the truth of any assertion contained
therein. Rather, the catalogs and web pages are offered to show that these cups
have been, and continue to be, commonly sold and available. See Giggle, Inc. v.
netFocal, Inc., 856 F. Supp. 2d 625, 633 (S.D.N.Y. 2012) (“[E]vidence of the
advertisements and websites, which are themselves not hearsay, . . . shows that . . .
third parties have been actively using the GIGGLE mark in commerce to sell
children’s toys, market children’s goods and services to the consuming public, and
operate businesses in the children’s goods and services industry.”) (emphasis
added). Because Regent’s evidence has been properly authenticated and is not
hearsay, it is admissible and properly considered on this summary judgment
motion.
41

See 9/16/13 Pomerantz Decl. ¶¶ 114-115.
12

ring shaped base, when the cap is considered individually and when attached to a
cup.”42 Regent submits numerous examples of other flip-top cups that include a
“football helmet-shaped” cap “with a “ring shaped base.”43 Regent argues that
these designs are “common, non-distinctive, unquestionably conform[] to industry
standards, and [are] thus generic and unprotectable.”44
“It is axiomatic that generic product designs are not entitled to trade
dress protection under the Lanham Act.”45 “A trade dress that consists of the shape
of a product that conforms to a well-established industry custom is generic and
hence unprotected.”46 “The level of generality at which a trade dress is described,
as well as the fact that a similar trade dress is already being used by manufacturers
of other kinds of products, may indicate that that dress is no more than a concept or
idea to be applied to particular products.”47 “[W]here it is the custom in a particular
42

SAC ¶ 66.

43

See 9/16/13 Pomerantz Decl. ¶¶ 133-135 and 11/18/13 Pomerantz
Decl. ¶ 4. See also Def. 56.1 ¶¶ 193-203. LNC’s objections as to authentication
and hearsay regarding this evidence are the same as those addressed above.
44

11/8/13 Defendant Regent Baby’s Reply Memorandum of Law in
Support of Its Motion for Partial Summary Judgment (“Def. Rep.”), at 13.
45

Malaco Leaf, AB v. Promotion in Motion, Inc., 287 F. Supp. 2d 355,
363 (S.D.N.Y. 2003).
46

Fun-Damental Too, 111 F.3d at 1000.

47

Milstein, 58 F.3d at 33.
13

industry to package products in a similar manner, a trade dress done in that style is
likely to be generic.”48
Courts in the Second Circuit have thus held that a black rectangularshaped compact design is generic, because these qualities are “common
characteristics of the entire genre of makeup compacts,”49 that the “Swedish Fish”
candy design is generic because “animal-shaped gummy candy is common in the
candy industry,”50 and that the “use of gold stars, blue sky and clouds in the
labeling and advertising of” a doll is generic because it is “merely suggestive of the
broader idea of [an] angelic . . . character.”51 Other federal circuit courts have
adopted the Second Circuit’s precedent on generic trade dress.52
There is no genuine issue of material fact as to whether these designs
48

Mana Prods. v. Columbia Cosmetics Mfg., 65 F.3d 1063, 1069-71 (2d

Cir. 1995).
49

Id. at 1070.

50

Malaco Leaf, 287 F. Supp. 2d at 364.

51

Kaufman & Fisher Wish Co. Ltd., v. FAO Schwarz, 184 F. Supp. 2d
311, 322 (S.D.N.Y. 2001).
52

See, e.g., Abercrombie & Fitch Stores, Inc. v. American Eagle
Outfitters, Inc., 280 F.3d 619, 638 (6th Cir. 2002) (finding generic product
configurations unprotectable despite secondary meaning evidence because “no
designer should have a monopoly on designs regarded by the public as the basic
form of a particular item”); Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205
F.3d 137, 142 (4th Cir. 2000) (“Trade dress should be considered generic if
well-known or common . . . or a common basic shape or design”).
14

are generic. LNC’s trade dress descriptions refer to common shapes frequently
used in the sippy cup industry – a “generally cylindrical cup with a slightly wider
upper portion” and a cap with a “bulb-like base and a slightly pointed top” or a
“football-helmet shaped cap” with a “ring shaped base” – that even when
configured together would simply be too broad and too general to warrant trade
dress protection. Much like the Swedish Fish design is common among candy
manufacturers and a black compact is common in the cosmetics industry, these
general shapes and configurations are ubiquitous in the sippy cup market and do
not warrant Lanham Act protection. “[G]ranting trade dress protection to an
ordinary product design would create a monopoly in the goods themselves.”53
LNC does not substantively contest Regent’s evidence that the design
is common in the market. Rather, LNC argues that the design was intended to
“provid[e] the consumer with a unique and distinctive look” and that “it is these
unique designs that consumers have grown and learned to associate with LNC.” 54
These assertions do not raise a genuine issue of material fact as to whether or not
the product configurations are generic and commonplace. LNC’s argument that its
hard spout and flip-top designs have developed a secondary meaning is irrelevant

53

Landscape Forms, 111 F.3d at 380.

54

Pl. Opp. at 4-5.
15

for generic trade dress. Second Circuit law is clear that “even a showing of
secondary meaning is insufficient to protect product designs that are overbroad or
generic”55 and that “[g]eneric trade dress is never entitled to protection.” 56
Because LNC has failed to define a protectable interest under the
Lanham Act, I need not consider likelihood of confusion or the functionality of the
trade dresses’ features.57 Accordingly, LNC’s Lanham Act claims as to its hard
spout cup and flip-top cap product configurations are dismissed.
B.

Tortious Interference
Regent does not deny that it sold its products to Dollar General.

However, Regent argues that the mere sale of these products is insufficient to
prove that it intentionally interfered with LNC’s business relationship.58 Regent
also argues that LNC has failed to present evidence of injury, which is one of the
required elements of the tortious interference tort. According to Regent, “the only

55

Yurman, 262 F.3d at 118.

56

Kaufman, 184 F. Supp. 2d at 321 (citing Nora Beverages, Inc. v.
Perrier Group of Am., Inc., 164 F.3d 736, 743 (2d Cir. 1998)).
57

Medism Ltd. v. Best Med LLC, 910 F. Supp. 2d 591, 615 (S.D.N.Y.

2012).
58

See Def. Rep. at 13-14 (“Regent’s mere sale of its own products – the
only action LNC takes issue with – and nothing more, does not constitute
intentional interference.”).
16

relationship allegedly injured was with Dollar General, which remains a current
LNC customer.”59 LNC responds that even though Dollar General “remains a
customer of LNC to a certain degree, [Regent’s] sales have interfered with LNC’s
ability to sell as many of its original products . . . as it otherwise could have.”60
“Under New York law, the [intentional interference element] has
been interpreted as requiring direct interference with a third party, that is, ‘the
defendant must direct some activities towards the third party and convince the third
party not to enter into a business relationship with the plaintiffs.’”61 LNC has failed
to provide evidence that Regent targeted Dollar General specifically as an LNC
customer and directed any activity towards Dollar General to specifically convince
Dollar General to end or limit its relationship with LNC.62 Regent merely sold its
products to a retailer. Even if some of those products are ultimately found to have

59

Def. Mem. at 11. Accord Def. 56.1 ¶ 209.

60

Pl. Opp. at 15. LNC also asserts for the first time in its opposition that
Regent sold allegedly infringing products to Wal-Mart. However, Regent states
that it “never sold the remaining items in this case to Wal-Mart.” 11/8/13
Pomerantz Decl. ¶ 5.
61

Bekhor v. Josephthal Grp., Inc. No. 96 Civ. 4156, 2000 WL 1521198,
at *8 (S.D.N.Y. Oct. 13, 2000) (quoting Black Radio Network, Inc. v. Nynex Corp.,
No. 96 Civ. 4138, 2000 WL 64874, at *4 (S.D.N.Y. Jan. 25, 2000)).
62

Regent notes that LNC has never pled nor argued that Regent was
aware of LNC’s relationship with Dollar General. See Def. Rep. at 13, n. 61.
17

infringed upon LNC's patents or trade dress, the mere sale of those products
without the intention to interfere with LNC's business relationship is not a tort.
Furthermore, LNC fails to provide evidence as to injury. The mere
assertion that LNC has potentially lost out on sales, unsupported by facts, is
conclusory and insufficient to defeat a motion for summary judgment. 63
Accordingly, LNC's claim based for tortious interference with prospective
business relations is dismissed.

VI.

CONCLUSION
For the foregoing reasons, Regent's motion for partial summary

judgment is granted. The Clerk of the Court is directed to close this motion
(Docket No. 89). A conference is scheduled for January 6, 2014, at 4:30 p.m. in
Courtroom 15C.

Dated:

New York, New York
December 11, 2013

See BellSouth Telecomm., Inc. v. W.R. Grace & Co., 77 F.3d 603,615
(2d Cir. 1996) ("The party opposing the motion for summary judgment must set
forth concrete particulars. It is not sufficient merely to assert a conclusion without
supplying supporting arguments or facts.") (quotations and other marks omitted)).
63

18

-AppearancesFor Plaintiffs:
Lee A. Goldberg, Esq.
Morris E. Cohen, Esq.
Goldberg Cohen, LLP
1350 Avenue of the Americas, Suite 425
New York, New York 10019
[phone]
For Defendant:
James J. Foster, Esq.
Wolf, Greenfield & Sacks, P.C.
600 Atlantic Avenue
Boston, Massachusetts 02210
[phone]
John T. Johnson, Esq.
David Tadahiko Yaegashi, Esq.
John Stephen Goetz, Esq.
Kristen A. McCallion, Esq.
Fish & Richardson P.C.
601 Lexington Ave, 52nd floor
New York, New York 10022
[phone]

19