Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 1 of 14 PageID #:698
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`No. 13-cv-01686
`
`Judge Edmond E. Chang
`
`))
`
`)
`)
`
`))
`
`))
`
`)
`
`WEBER-STEPHEN PRODUCTS LLC,
`
`Plaintiff,
`
`v.
`
`SEARS HOLDING CORPORATION,
`
`Defendant.
`
`MEMORANDUM OPINION AND ORDER
`
`Plaintiff Weber-Stephen Products LLC brought this suit against Defendant
`
`Sears Holding Corporation, alleging patent infringement in violation of 35 U.S.C. § 271
`
`and trade dress infringement in violation of section 43(a) of the Lanham Act, 15 U.S.C.
`
`§ 1125(a).1 R. 1, Compl. Sears has moved to dismiss the trade dress infringement claim
`
`pursuant to Rule of Civil Procedure 12(b)(6).2 R. 20. For the reasons below, the motion
`
`is denied.
`
`I. Background
`
`In evaluating this motion to dismiss, the Court accepts as true the complaint’s
`
`factual allegations and draws reasonable inferences in Plaintiffs’ favor. Ashcroft v.
`
`al-Kidd, — U.S. —, 131 S. Ct. 2074, 2079 (2011). Weber is a leading worldwide
`
`designer and manufacturer of outdoor gas, charcoal, and electric grills and grilling
`
`1The Court has subject matter jurisdiction under 28 U.S.C. §§ 1331, 1338(a)-(b).
`
`2Although the complaint seems to split the trade dress claim into two parts (namely,
`“Count IV—Unfair Competition and False Designation of Origin” and “Count IV—Federal
`Trade Dress Infringement,” Compl. at 9, 12), as discussed below, these two claims are really
`a single claim for trade dress infringement.
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 2 of 14 PageID #:699
`
`accessories, including the Weber Genesis line of grills. Compl. ¶ 3. As such, Weber
`
`owns a variety of design and utility patents, id., three of which are at issue in this case.
`
`First, Weber owns United States Patent No. 8,347,874 B2 (entitled “Grease Drip Pan
`
`and Gas Tank Blocker for a Barbecue Grill”), which issued on January 8, 2013. Id. ¶ 4.
`
`Second, Weber owns United States Design Patent No. D564,834 S (entitled “Shroud for
`
`a Barbecue Grill”), which issued on March 25, 2008. Id. ¶ 5. Finally, Weber owns
`
`United States Design Patent No. D609,045 S (entitled “Grill”), which issued on
`
`February 2, 2010. Id. ¶ 6.
`
`Weber alleges that Sears—which also sells outdoor grills and grilling accessories
`
`under its Kenmore brand, id. ¶ 8—has infringed and continues to infringe these three
`
`patents. In Count One, Weber alleges that Sears’s Kenmore Elite Stainless grill and
`
`Kenmore Elite Espresso grill infringe the ‘874 Patent by also featuring propane tank
`
`blocking structures and grease-collecting cup brackets. Id. ¶¶ 16, 20-23. In Count Two,
`
`Weber alleges that the Kenmore grills infringe the ‘834 Patent by appropriating the
`
`‘834 Patent’s ornamental design for a barbecue grill “shroud” (that is, a lid). Id. ¶¶ 31-
`
`34. And in Count Three, Weber alleges that the Kenmore grills infringe the ‘045 Patent
`
`by appropriating the ‘045 Patent’s overall ornamental design for a barbecue grill.
`
`Id. ¶¶ 42-45. According to Weber, Sears has willfully infringed each of these three
`
`patents. Id. ¶¶ 27, 38, 49.
`
`Relevant here, Weber also claims that the Kenmore Elite Stainless and Espresso
`
`grills infringe the trade dress for Weber’s Genesis S310 and S330 grills, respectively.
`
`See id. ¶ 55. Weber has allegedly spent time, effort, and resources to design and
`
`2
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 3 of 14 PageID #:700
`
`develop “unique and inherently distinctive appearances for its Genesis® grill products
`
`including, without limitation, their distinctive shape, proportions and feature
`
`placements, such as their shroud riveted band design and door trim design.” Id. ¶ 68.
`
`This grill design, according to Weber, is non-functional. Id. ¶ 58. Yet Sears has
`
`allegedly patterned its Kenmore grills after the Weber Genesis grill design “with the
`
`express intent to pass [the Kenmore grills] as those of Weber and to cause confusion
`
`and mislead the purchasing public.” Id. ¶ 59. Weber believes that Kenmore grill sales
`
`“are likely to cause consumer confusion because of the similarity in appearance and
`
`look between Sears’ and Weber’s products.” Id. ¶ 60. As a result, Weber seeks
`
`compensatory damages for “loss of goodwill, loss of past and/or future sales, and
`
`damages caused by Sears’ acts of trade dress infringement and unfair competition.”
`
`Id. at 14. In response, Sears moved to dismiss the trade dress infringement claim. R.
`
`20.
`
`II. Standard of Review
`
`Under Federal Rule of Civil Procedure 8(a)(2), a complaint generally need only
`
`include “a short and plain statement of the claim showing that the pleader is entitled
`
`to relief.” Fed. R. Civ. P. 8(a)(2). This short and plain statement must “give the
`
`defendant fair notice of what the claim is and the grounds upon which it rests.” Bell
`
`Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation and citation omitted). The
`
`Seventh Circuit has explained that this rule “reflects a liberal notice pleading regime,
`
`which is intended to ‘focus litigation on the merits of a claim’ rather than on
`
`3
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 4 of 14 PageID #:701
`
`technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578 F.3d 574, 580
`
`(7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).
`
`“A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state
`
`a claim upon which relief may be granted.” Hallinan v. Fraternal Order of Police
`
`Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). “[A] complaint must contain
`
`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
`
`on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
`
`570). These allegations “must be enough to raise a right to relief above the speculative
`
`level.” Twombly, 550 U.S. at 555. The allegations that are entitled to the assumption
`
`of truth are those that are factual, rather than mere legal conclusions. Iqbal, 556 U.S.
`
`at 678-79.
`
`III. Analysis
`
`“Trade dress refers to a product’s overall image, including its size, shape, color,
`
`graphics, packaging, and label, and receives protection against infringement under
`
`§ 43(a)(1) [of the Lanham Act].” Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 20
`
`(7th Cir. 1992) (internal quotation marks and citations omitted). Under the Lanham
`
`Act, “[a]ny person who, on or in connection with any goods or services . . . uses in
`
`commerce . . . any false designation of origin . . . which is likely to cause confusion, or
`
`to cause mistake, or to deceive 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.” 15 U.S.C. § 1125(a)(1)(A). The Lanham Act thus provides a private right of
`
`4
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 5 of 14 PageID #:702
`
`action to product manufacturers who believe that others are copying the overall image
`
`of their products and sowing confusion in the marketplace.
`
`To hold Sears liable for the alleged trade dress infringement, Weber brings two
`
`claims—one for unfair competition and false designation of origin, and the other for
`
`federal trade dress infringement. Compl. at 9, 12. They are redundant. Weber’s unfair
`
`competition claim does not allege that Sears committed false advertising under 15
`
`U.S.C. § 1125(a)(1)(B). See Compl. at 9-11. Instead, it alleges that the Kenmore grills
`
`confuse consumers. See, e.g., id. ¶ 59. To bring a confusion claim under the Lanham
`
`Act, Weber must plausibly plead that (1) it owns a protectable trademark and (2)
`
`consumers are likely to confuse Sears’s products with its own. Forum Corp. of N. Am.
`
`v. Forum, Ltd., 903 F.2d 434, 439 (7th Cir. 1990). But the protectable trademark Weber
`
`asserts here is its trade dress. See Compl. ¶ 54 (“Sears intentionally copied and offered
`
`in interstate commerce gas grill products that create the same overall visual effect and
`
`appearance as the family of grills in Weber’s Genesis® line.”). Weber’s unfair
`
`competition claim really seeks to hold Sears liable for copying Weber’s trade dress,
`
`meaning that the two claims are duplicative. Accordingly, the Court construes them
`
`as a single claim for trade dress infringement.
`
`To bring a trade dress infringement claim, Weber must plausibly plead that (1)
`
`its trade dress is nonfunctional, (2) its trade dress has acquired secondary meaning,
`
`and (3) a likelihood of confusion exists between its trade dress and Sears’s trade dress.
`
`Incredible Techs., Inc. v. Virtual Techs., Inc., 400 F.3d 1007, 1015 (7th Cir. 2005). But
`
`these three elements presuppose that Weber has defined what its trade dress actually
`
`5
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 6 of 14 PageID #:703
`
`is. To survive this motion to dismiss, then, Weber must have identified the claimed
`
`trade dress before plausibly pleading the three elements of a trade dress infringement
`
`claim: nonfunctionality, secondary meaning, and a likelihood of confusion.
`
`A. Weber’s Trade Dress
`
`Sears first argues that Weber has failed to define its trade dress with the
`
`requisite specificity. R. 21, Def.’s Br. at 5. In response, Weber says yes it has, pointing
`
`to this allegation in its complaint: “Weber has expended considerable time, effort and
`
`resources to design and develop unique and inherently distinctive appearances for its
`
`Genesis® grill products including, without limitation, their distinctive shape,
`
`proportions and feature placements, such as their shroud riveted band design and door
`
`trim design.” Compl. ¶ 68; R. 24, Pl.’s Resp. at 8-9. Paragraph 68 also incorporates ¶ 55
`
`by reference, which in turn includes photographs of the Weber Genesis S310 and S330
`
`grills placed next to the Kenmore Elite Stainless and Espresso grills for a side-by-side
`
`comparison. Id. ¶ 55.
`
`The majority of these allegations are not entirely enough to place this Court or
`
`Sears on notice of what exactly Weber believes is its protectable trade dress. Although
`
`courts must assess the “overall appearance” of trade dress for similarity, August Storck
`
`K.G. v. Nabisco, Inc., 59 F.3d 616, 620 (7th Cir. 1995) (citation omitted), that principle
`
`does not mean that simply pointing to a product’s overall appearance is enough to state
`
`a claim for trade dress infringement. Rather, the overall appearance of the trade dress
`
`comes into play only after the trade dress is first properly identified with the “discrete
`
`elements which make up that combination . . . separated out and identified in a list.”
`
`6
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 7 of 14 PageID #:704
`
`Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 634 (6th
`
`Cir. 2002) (quoting MCCARTHY ON TRADEMARKS § 8:3) (internal quotation mark
`
`omitted); see also Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 381
`
`(2d Cir. 1997) (“Nonetheless, focus on the overall look of a product does not permit a
`
`plaintiff to dispense with an articulation of the specific elements which comprise its
`
`distinct dress. Without such a precise expression of the character and scope of the
`
`claimed trade dress, litigation will be difficult, as courts will be unable to evaluate how
`
`unique and unexpected the design elements are in the relevant market.”). Instead of
`
`precisely identifying the character and scope of its trade dress, Weber simply includes
`
`photographs of two entire grills—not even close-ups of particular grill features—and
`
`describes its trade dress as “including, without limitation, their distinctive shape,
`
`proportions and feature placements.” Compl. ¶ 68 (emphasis added). Without more
`
`factual detail as to what exactly the grill shapes, proportions, and features are, these
`
`extremely broad categories are insufficient to put the Court and Sears on notice of
`
`what Weber believes is its protectable trade dress. And that means that neither the
`
`Court nor Sears can easily determine whether the elements of a trade dress
`
`infringement claim are adequately pled. Contrary to its complaint, Weber must place
`
`a limit on the trade dress it would like to claim.
`
`Weber disagrees, citing to three cases from the Northern District of Illinois that
`
`denied motions to dismiss trade dress infringement claims on pleading-standard
`
`grounds. Pl.’s Resp. at 2-4. But two of those cases were decided before Twombly and
`
`Iqbal and applied the no-set-of-facts standard that Twombly “retire[d],” 550 U.S. at
`
`7
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 8 of 14 PageID #:705
`
`563. See Woman’s Newspapers, LLC v. Cavanagh, 2005 WL 3591808, at *3 (N.D. Ill.
`
`Dec. 29, 2005); David White Instruments, LLC v. TLZ, Inc., 2003 WL 21148224, at *8
`
`(N.D. Ill. May 14, 2003). And even if the complaint in the third cited case survived a
`
`motion to dismiss despite a “somewhat conclusory” identification of trade dress just by
`
`attaching product photographs, that decision is not binding on this Court. See Dynamic
`
`Fluid Control (PTY) Ltd. v. Int’l Valve Mfg., LLC, 790 F. Supp. 2d 732, 737 (N.D. Ill.
`
`2011). Indeed, although the Seventh Circuit has yet to decide exactly how detailed a
`
`complaint’s trade dress allegations must be to overcome a post-Iqbal motion to dismiss,
`
`controlling precedent assumes that plaintiffs will identify and describe their trade
`
`dress in some detail. See, e.g., Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765
`
`(1992) (quoting the plaintiff’s description of the precise constituent elements of its
`
`Mexican restaurants’ trade dress); August Storck, 59 F.3d at 619-20 (detailing the
`
`constituent elements of both plaintiff’s and defendant’s trade dress before concluding
`
`that consumers were unlikely to be confused by the two). Weber’s cited cases, therefore,
`
`do not support its position that including pictures of its grills in its complaint, without
`
`detailed description, is enough. See Pl.’s Resp. at 8-9.
`
`But Weber’s complaint, as it stands now, does contain two factual allegations
`
`that could form the basis for a trade dress infringement claim. Specifically, Weber uses
`
`the Genesis “shroud riveted band design and door trim design” as examples of
`
`protectable trade dress. Compl. ¶ 68. In fact, those are the only examples that appear
`
`in the complaint. Weber’s response brief, moreover, emphasizes those features. Pl.’s
`
`Resp. at 8. Although Weber does not clarify exactly what it means by “shroud riveted
`
`8
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 9 of 14 PageID #:706
`
`band design” and “door trim design,” the Genesis grill photographs and the figures in
`
`the ‘834 and ‘045 Patents show that the Genesis grills appear to have metal bands
`
`running along the edges of the grill shrouds and along the doors in the grill bodies. See
`
`id. ¶¶ 33, 44, 55. These bands outline a border or trim around the grill shrouds and
`
`doors. See id. And parts of these bands—at least the bands bordering the grill
`
`shrouds—appear to house metal rivets that protrude above the surface instead of
`
`sitting flush against the metal. See, e.g., id. ¶¶ 33, 55. So after reading “shroud riveted
`
`band design” and “door trim design” in combination with the photographs and patent
`
`figures, the Court construes Weber’s trade dress, for the purposes of its infringement
`
`claim, as (1) the metal bands bordering the edges of the grill shroud and doors and (2)
`
`any metal rivets on top of those bands.3 This reading of Weber’s complaint gives Sears
`
`enough notice of what Weber believes is its protectable trade dress. It also gives the
`
`Court a sufficient basis to determine whether Weber has plausibly pled that Sears has
`
`infringed its trade dress, which is the second hurdle that Weber must clear.
`
`B. Elements of a Trade Dress Infringement Claim
`
`1. Nonfunctionality
`
`Because Weber has not alleged that its trade dress is federally registered, to
`
`bring a trade dress infringement claim it must first plausibly plead that its trade dress
`
`3The Court notes that Weber’s complaint alleges two separate “designs”—one for the
`shroud riveted band and the other for the door trim. See Compl. ¶ 68. But it appears from the
`photographs and patent figures that the metal band bordering the grill shrouds and doors are
`not materially different designs. See, e.g., id. ¶ 55. Thus, the Court construes those two designs
`together. If Weber disagrees, it may file a motion for leave to amend the complaint and attach
`a proposed amended complaint that alleges, in much greater factual specificity, what those two
`designs entail.
`
`9
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 10 of 14 PageID #:707
`
`is not functional. 15 U.S.C. § 1125(a)(3). Trade dress is functional “if it is essential to
`
`the use or purpose of the [product] or affects the cost or quality of the [product].”
`
`TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S.23, 35 (2001) (internal quotation
`
`marks and citation omitted). Put differently, “if a design enables a product to operate,
`
`or improves on a substitute design in some way (such as by making the product
`
`cheaper, faster, lighter, or stronger), then the design cannot be trademarked; it is
`
`functional because consumers would pay to have it rather than be indifferent toward
`
`or pay to avoid it.” Jay Franco & Sons, Inc. v. Franek, 615 F.3d 855, 857 (7th Cir.
`
`2010). So the question is whether the metal bordering the grill shroud and doors, and
`
`any rivets on top of that trim, enables the Weber Genesis grills to operate or is
`
`otherwise a feature that consumers would pay Weber to have.
`
`Sears has no quarrel with these basic principles. Instead, it argues that Weber’s
`
`complaint conclusorily pleads that its trade dress is nonfunctional. Def.’s Br. at 12.
`
`True, Weber’s complaint merely pleads allegations like “[t]he Weber Genesis grill
`
`design is non-functional” and “Weber’s non-functional trade dress.” Compl. ¶¶ 58, 69.
`
`But the photographs and patent figures found elsewhere in the complaint demonstrate
`
`that it is plausible that the metal borders and protruding rivets are nonfunctional
`
`design features. The depictions plausibly show that the metal borders serve a
`
`decorative purpose rather than enable the grill to operate. See, e.g., id. ¶ 55. Indeed,
`
`it is entirely plausible that the Weber Genesis grills would be just as good at grilling
`
`food if the shroud and doors were untrimmed with metal. The same goes for the metal
`
`rivets. Although it is unclear from the pictures what function the rivets perform (if
`
`10
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 11 of 14 PageID #:708
`
`any), it is again plausible that the rivets are also there to decorate the grill—lending
`
`it a sturdy, industrial look—rather than to affix the bands to the grill shroud or to
`
`fasten the corners of the shroud together. See id. And consumers would not necessarily
`
`pay extra to have a metal-trimmed grill or a grill with superfluous rivets. Jay Franco
`
`& Sons, 615 F.3d at 857. It would be different if the trade dress was the entire grill
`
`shroud itself; the lid of a grill, which traps heat and smoke onto the grilling surface
`
`when lowered, is clearly functional. But the Court has limited Weber’s trade dress
`
`claim to something more narrow than just the grill shroud as a whole. With that
`
`construction, Weber’s complaint plausibly pleads that its trade dress is nonfunctional.
`
`2. Secondary Meaning and a Likelihood of Confusion
`
`Besides pleading nonfunctionality, Weber must also plead that its trade dress
`
`acquired “secondary meaning” among consumers, and that consumers are likely to be
`
`confused between the trade dress of the Weber Genesis and Sears Kenmore grills.4
`
`Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633, 636 (7th Cir. 1999)
`
`(citation omitted). Trade dress acquires secondary meaning when consumers associate
`
`the design with a particular manufacturer. Bodum USA, Inc. v. La Cafetiere, Inc., 621
`
`F.3d 624, 627 (7th Cir. 2010) (citation omitted). Accordingly, Weber must plausibly
`
`4Although these are separate elements of a trade dress infringement claim, Sears
`contends, in the context of discussing secondary meaning, that the likelihood-of-confusion
`element is also implausibly pled. See Def.’s Br. at 8. The Court likewise discusses both
`elements simultaneously, especially because the analysis at this stage is similar for both
`elements.
`
`11
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 12 of 14 PageID #:709
`
`plead that there is “a link in the minds of consumers between the [product] and its
`
`source.” Jay Franco & Sons, 615 F.3d at 857 (citations omitted).
`
`Sears again argues that Weber’s complaint conclusorily pleads that its grills
`
`have achieved secondary meaning and that consumers are likely to be confused. See
`
`Def.’s Br. at 8. Weber’s complaint, however, passes muster. Although allegations like
`
`“[t]he Weber Genesis grill design obtained secondary meaning well prior to Sears’
`
`introduction of the Accused Products” and “[s]ales of Sears’ Accused Products are likely
`
`to cause consumer confusion” are impermissible legal conclusions, Compl. ¶¶ 54, 60,
`
`Weber does plead some factual allegations. For example, Weber alleges that its Genesis
`
`trade dress (that is, its metal trim and rivets) is “unique” and has a “distinctive
`
`appearance.” See, e.g., id. ¶¶ 61, 68. And Weber has also pled that it has “expended
`
`considerable time, effort and resources to design and develop” its trade dress. Id. ¶ 68.
`
`Read together, these factual allegations plausibly plead that Weber has invested into
`
`building its brand cachet in the marketplace, causing consumers to associate grills
`
`possessing the unique and distinctive riveted metal shroud and door trim with the
`
`Weber brand. Indeed, in its response brief, Weber contends that “[i]n the entire
`
`marketplace, there are only two companies with the Weber Genesis grill design—the
`
`original Weber and the knock-off by Sears.” Pl.’s Resp. at 7. This assertion—which
`
`went unrebutted in Sears’s reply brief—further supports the alleged uniqueness of
`
`Weber’s trade dress. Accordingly, as construed by the Court, it is plausible that
`
`consumers associate riveted metal shroud and door trims with Weber grills—so much
`
`so that they are likely to be confused if they see Kenmore grills with that trim.
`
`12
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 13 of 14 PageID #:710
`
`To be sure, Weber may face a heavy evidentiary burden after discovery to prove
`
`secondary meaning and a likelihood of confusion. At summary judgment (if this case
`
`proceeds to summary judgment), the Court may consider several factors in deciding
`
`whether Weber’s riveted metal shroud and door trim has acquired secondary meaning,
`
`including consumer testimony and surveys. Platinum Home Mortgage Corp. v.
`
`Platinum Fin. Grp., Inc., 149 F.3d 722, 732 (7th Cir. 1998) (citation omitted). Likewise,
`
`“[i]n determining whether the likelihood of confusion exists, courts consider such
`
`factors as the type of trademark in issue, the similarity of design, similarity of
`
`products, identity of retail outlets and purchasers, identity of the advertising media
`
`utilized, the alleged infringer’s intent, and actual confusion.” Schwinn Bicycle Co. v.
`
`Ross Bicycles, Inc., 870 F.3d 1176, 1185 (7th Cir. 1989) (internal quotation marks and
`
`citation omitted). It is entirely possible that with the benefit of discovery, Sears may
`
`demonstrate that consumers do not associate a riveted metal border, around the grill
`
`shroud and doors, with the Weber brand—or any brand—at all. But that is a matter
`
`for discovery. And at this early stage in the litigation, and especially after assuming
`
`the truth of Weber’s factual allegations, the Court concludes that its complaint (as
`
`construed) plausibly states a claim for trade dress infringement.
`
`13
`
`

`
`Case: 1:13-cv-01686 Document #: 50 Filed: 10/25/13 Page 14 of 14 PageID #:711
`
`IV. Conclusion
`
`For the reasons discussed above, Sears’s motion to dismiss Count 4 [R. 20] is
`
`denied. On or before November 12, 2013, Sears shall file an answer to Count 4.
`
`ENTERED:
`
` s/Edmond E. Chang
`Honorable Edmond E. Chang
`United States District Judge
`
`DATE: October 25, 2013
`
`14