UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

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HELLER INCORPORATED,Plaintiff,- against -DESIGN WITHIN REACH, INC.,Defendant.

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09 Civ. 1909 (JGK) MEMORANDUM OPINION AND ORDER JOHN G. KOELTL, District Judge:

The plaintiff, Heller Incorporated (“Heller”), has sued thedefendant, Design Within Reach, Inc. (“DWR”), for various claimsincluding trademark dilution and trade dress infringement, inviolation of the Lanham Act § 43, 15 U.S.C. § 1125 and New YorkGeneral Business Law § 360-l. The defendant moves pursuant toFederal Rules of Civil Procedure 12(b)(6) to dismiss some, butnot all of the claims.IOn a motion to dismiss pursuant to Federal Rule of CivilProcedure 12(b)(6), the allegations in the Complaint areaccepted as true. Grandon v. Merrill Lynch & Co., 147 F.3d 184,188 (2d Cir. 1998). In deciding a motion to dismiss, allreasonable inferences must be drawn in the plaintiff’s favor.Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). The

2Court’s function on a motion to dismiss is “not to weigh theevidence that might be presented at a trial but merely todetermine whether the complaint itself is legally sufficient.”Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). TheCourt should not dismiss a claim if the plaintiff has stated“enough facts to state a claim to relief that is plausible onits face.” Twombly v. Bell Atl. Corp., 550 U.S. 544, 570(2007). “A claim has facial plausibility when the plaintiffpleads factual content that allows the court to draw thereasonable inference that the defendant is liable for themisconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949(2009).In deciding the defendant’s motion to dismiss, the Courtmay consider documents attached to the Complaint or incorporatedin it by reference, matters of which judicial notice may betaken, or documents that the plaintiff relied upon in bringingsuit and either are in its possession or of which it hadknowledge. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153(2d Cir. 2000); see also Jofen v. Epoch Biosciences, Inc., No.01 Civ. 4129, 2002 WL 1461351, at *1 (S.D.N.Y. July 8, 2002).While the Court should construe the factual allegations inthe light most favorable to the plaintiff, “the tenet that acourt must accept as true all of the allegations contained in acomplaint is inapplicable to legal conclusions.” Iqbal, 129 S.

3Ct. at 1940; see also

Port Dock & Stone Corp. v. Oldcastle Ne.,Inc., 507 F.3d 117, 121 (2d Cir. 2007); Smith v. Local 819I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002).IIThe Court accepts the following factual allegations for thepurposes of this motion. The plaintiff is a New Yorkcorporation with its principal place of business in New York.(Compl. ¶ 5.) The plaintiff is an international manufacturer,distributor, and wholesale and retail seller of furniture withproduction facilities in the United States and Europe. (Compl.¶ 7.) In 1998, Mario Bellini, an Italian designer, designed an“ornamental and sculptural” chair known as the “Bellini Chair,”for the plaintiff. (Compl. ¶ 8; Exs. A and C.) The plaintiffhas continuously manufactured, promoted, and sold the BelliniChair since 1998. (Compl. ¶ 9.) The Bellini Chair has wonseveral prestigious awards, including the Compasso d’Oro in2001, and is part of the permanent collection of theMetropolitan Museum of Art in New York City. (Compl. ¶ 10.)Since 1998, the plaintiff has sold more than 180,000 units ofthe Bellini Chair, generating sales of over $9 million. (Compl.¶ 11.) The plaintiff asserts that the design of the BelliniChair has attained secondary meaning among the trade and the