& R”) at 2, 10-14, 18-21.) This recommendation was based on,
, Magistrate Judge Mann’s finding that the plaintiffshave a protectable trade dress right in the “combination of allor almost all” of four elements, which together give theStarwalker pen “a distinct overall look and commercialimpression,”
and based on the undisputed allegations that: (1)defendant “manufactured, sold, offered for sale and distributedpens . . . bearing . . . the [Starwalker] trade dress . . . or acolorable imitation thereof;” (2) in connection with the sale ofthese goods, defendant falsely represented that the goodsoffered were duly authorized and licensed by plaintiffs; and (3)defendant’s use of colorable imitations of the Starwalker tradedress created a likelihood that consumers would be confused ordeceived into believing that the imitations were plaintiffs’products, or sponsored or approved by plaintiffs. (R & R at 4;
addresses infringement of the Starwalker pen trade dress, the other claimswill only be discussed to the extent relevant to the instant motion.
Plaintiffs’ Complaint alleged, and Magistrate Judge Mann accepted, that a“combination of all or almost all” of the following four elements comprisedthe Starwalker trade dress:
a) a body, the upper portion of which has a uniform radius and thelower portion of which has a bulging out in radius and then a taperingdown to a point;b) a translucent, rounded dome at the top of the pen;c) a grid design consisting of small rectangular areas laid outaround the entire length of the pen of steel-colored edges and blackbackground, with the long edges of the rectangular area laid along thelength of the pen;d) at around the mid-point of the length of the lower bulgingportion of the pen there is a triple-band design in steel-colored metalaround the circumference of the pen with the band in the middle beingthicker than the bands above and below it.(Compl. ¶ 10;
Doc. No. 45, Proposed Permanent Inj. at 1.)