DECISION AND ORDER Plaintiff Caraway Home, Inc. (“Caraway” or “Plaintiff”) brings this action against Pattern Brands, Inc. doing business as Equal Parts (“Equal Parts” or “Defendant”). The Complaint alleges nine counts — including for trade dress and trademark infringement in violation of the Lanham Act and common law; unfair competition in violation of the Lanham Act and common law; deceptive practices and false advertising in violation of the New York General Business Law; and trademark dilution and injury to business reputation in violation of the New York General Business Law, among others — stemming from Equal Parts’s sale of cookware. (See “Complaint,” Dkt. No. 1.) Now before the Court are the premotion letters filed by the parties regarding Equal Parts’s contemplated motion to dismiss the Complaint. On February 18, 2021, Equal Parts notified Caraway of alleged deficiencies in the Complaint’s allegations of trade dress infringement and trademark infringement and requested dismissal of the action (the “February 18 Letter”). (See Dkt. No. 19.) Caraway responded by letter dated February 25, 2021 (the “February 25 Letter”). (See Dkt. No. 20.) Equal Parts replied by letter dated March 2, 2021 (the “March 2 Letter”). (See Dkt. No. 21.) The Court now construes Defendant’s letters as a motion by Defendant to dismiss Caraway’s trade dress and trademark claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (collectively, the “Letter Motion”).1 For the reasons set forth below, the Letter Motion is GRANTED IN PART and DENIED IN PART. I. BACKGROUND A. FACTUAL BACKGROUND2 Caraway is a corporation that designs, manufactures, and sells cookware and related items. According to Caraway, it has quickly become a well known and respected company providing direct-to-consumer sales and represents “a new generation of cookware.” (Complaint 11.) Caraway’s cookware has received significant media coverage for its stylish design and variety of colors. Caraway sells sets of cookware (the “Cookware Sets”) that consist of a fry pan, sauce pan, sauté pan, and Dutch oven. 1. Trade Dress Allegations Caraway alleges that its Cookware Sets uses many distinctive and nonfunctional features to identify the origin of its Cookware Sets and their components. Caraway also contends that as a result of its continuous and exclusive use of these designs, marketing, advertising, sales, and media coverage, its designs have acquired a secondary meaning and are uniquely associated with Caraway. As to its fry pan, sauté pan, and sauce pan (collectively, the “Caraway Pans”), Caraway alleges that it has trade dress rights in the overall look and appearance of the Caraway Pans, including but not limited to: the visual flow of the handle; the curves, tapers and lines in the Caraway Pans; the design, style and visual appearance of these curves (including the flattened curve of the lid shown on FIG, 4), tapers and lines in the Caraway Pans; the visual connection and relationship between the curves, tapers and lines in the Caraway Pans; the style, design and appearance of design aspects of the Caraway Pans handle; the design and appearance of the deep bowl-shape with high sidewalls of the Fry Pan interior; the design and appearance of the glossy finish exterior of the Caraway Pans; the design and appearance of the gloss finish throughout the Caraway Pans, including on the handles, interior, and exterior; and the design, appearance and lines of the Fry Pan shiny stainless steel handle. (Id. 28.) Similarly, Caraway alleges that it has trade dress rights in the overall look and appearance of the Caraway Pans’ handle, such as: its U-shaped, wide-stance space attaching the handle to the rounded pan; the visual appearance of the curves, tapers and lines associated therewith; the design, style, visual appearances, curves, tapers and lines of the open space formed between the edge of the handle at its center, and the pan; the design, style, visual appearances, curves, tapers and lines of the two attachment portions of the handle to the pan; the design, style, visual appearances, curves, tapers and lines of the flattened top side of the handle; the design, style, visual appearances, curves, tapers and lines of the rounded underside of the handle; the design, style, visual appearances, curves, tapers and lines of the handle being thinner at the end closer to the pan, and thicker farther from the pan; and the design, style, visual appearances, gloss, shiny stainless steel, curves, tapers and lines of the thick distal hole formed at the distal end of the handle. (Id. 29.) Caraway further alleges that it has trade dress rights in the overall look and appearance of the Caraway Pans lid, particularly its flattened, disc shape, which provides a more aesthetically pleasing look distinct from glass and stainless steel, and the visual appearance of the associated curves, tapers, and lines. Finally, Caraway alleges it has trade dress rights in the overall look, design, and appearance of its cream colored and navy-blue colored cookware. Defendant launched in 2019, and the Equal Parts branch was introduced in September 2019. Equal Parts failed to meet the growth expectation of its founders, investors, and the general market. When Equal Parts launched, it focused on selling low-priced, all-black cookware with flash style photography, and its market positioning focused on a text-a-chef service as its main value proposition. In a Harvard Business School Study, Defendant acknowledged that Equal Parts was a failure, the contrast with Caraway’s successful launch, and the praise Caraway received for its unique design and colors. On September 29, 2020, Equal Parts relaunched with a new aesthetic that intentionally represented Caraway’s design of glossy colored cookware with shiny stainless-steel handles, cream and navy coloring, flat lids, as well as similar photography and marketing materials. One media source, The Daily Beast, found Equal Parts to be nearly identical to Caraway. Caraway alleges that Equal Parts’s products are confusingly similar imitations of its cookware and are offered in substantially the same form. Equal Part’s actions have not been authorized by Caraway. Caraway includes the following image to demonstrate the differences between the various products at issue: (Id. at 16.) In particular, Caraway alleges that Equal Parts uses Caraway’s trade dress related to the handles, navy blue and cream colors, light interior color, and unique lid designs of the Caraway Pans. 2. Trademark Allegations Caraway owns the valid and subsisting United States Trademark Registration No. 6,115,214 on the Principal Register in the United States Patent and Trademark Office (“USPTO”) for the trademark “Caraway” (the “Caraway Mark”) for cookware, namely, stock pots, sauté pans, frying pans, sauce pans, stir-fry pans, skillets, Chef’s pans made of ceramic, pot holders, Dutch ovens, oven mitts, coasters not of paper or textile in Class 21, dish towels, and coasters of textile in Class 24. Without Caraway’s authorization, Defendant began purchasing Google Adwords and Google Shopping Advertisements in the United States for the Caraway Mark and related branded search terms so as to advertise the Equal Parts brand when consumers searched for “Caraway” using Google’s search engine. Defendant has marketed, advertised, promoted, and otherwise purchased the Caraway Mark as adwords and keywords via search engines. Defendant’s use is likely to deceive consumers, Caraway contends. B. PROCEDURAL HISTORY Caraway filed the instant suit on December 10, 2020. Count One alleges trade dress infringement in violation of the Lanham Act, 15 U.S.C. §1125(a); Count Two alleges unfair competition and false designation of origin in violation of the Lanham Act, 15 U.S.C. §1125(a); Count Three alleges common law trade dress infringement; Count Four alleges common law unfair competition; Count Five alleges deceptive practices and false advertising in violation of the New York General Business Law §§349, 350; Count Six alleges trademark dilution and injury to business reputation in violation of the New York General Business Law §360-l; Count Seven alleges trademark infringement in violation of the Lanham Act, 15 U.S.C. §1141(1); Count Eight alleges unfair competition based on the purchase and use of the Caraway Mark as adwords and keywords in search engines in violation of the Lanham Act, 15 U.S.C. §1125(a); and Count Nine alleges federal trademark dilution. C. THE PARTIES’ ARGUMENTS Equal Parts makes three primary arguments challenging the sufficiency of Caraway’s allegations as to trade dress and trademark infringement. First, Equal Parts argues that Caraway has not met the Second Circuit’s pleading requirements for unregistered product configurations. Equal Parts contends that the descriptions of the claimed trade dress are not sufficiently specific, and Caraway has not adequately pled how the relevant product configurations are nonfunctional. Equal Parts further asserts that while Caraway has pled general facts about its commercial success, the “factual allegations do not point to advertising or consumer recognition of these product features as a brand.” (February 18 Letter at 3.) Second, Equal Parts argues that Caraway’s allegations of likelihood of confusion between its products and Caraway’s are implausible given the stark differences between the products. Equal Parts includes the following image: (Id. at 1.) Third, Equal Parts argues that Caraway’s trademark infringement claims must fail because “the Complaint does not allege that Defendant’s advertisements themselves use Plaintiff’s CARAWAY mark.” (Id. at 3.) Equal Parts cites Alzheimer’s Disease and Related Disorders Association, Inc. v. Alzheimer’s Foundation of America, Inc., 307 F. Supp. 3d 260, 291 (S.D.N.Y. 2018), for the proposition that keyword advertising does not support a claim of trademark infringement if the advertisement itself did not infringe on a plaintiff’s trademark. Caraway responds that Defendant’s arguments are meritless. As to its trade dress claims, Caraway argues that it has alleged the elements of it trade dress with sufficient specificity to survive at the motion-to-dismiss stage, particularly because the Complaint contains numerous pictures of the products. Caraway also notes that functionality, secondary meaning, and likelihood of confusion are fact-intensive inquiries not suitable for resolution on a motion to dismiss. As to its trademark infringement claims, Caraway argues that Alzheimer’s Disease, 307 F. Supp. 3d 260, is distinguishable as it did not involve a motion to dismiss. In its reply, Equal Parts argues that Caraway cannot cure the identified deficiencies because its claimed trade dress is directed towards common, everyday cookware features and because the case law forecloses its theory of trademark infringement. II. LEGAL STANDARD A. RULE 12(b)(6) MOTION TO DISMISS Rule 12(b)(6) provides for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard is met “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint should be dismissed if the plaintiff has not offered factual allegations sufficient to render the claims facially plausible. See id. However, a court should not dismiss a complaint for failure to state a claim if the factual allegations sufficiently “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In resolving a Rule 12(b)(6) motion, the Court’s task is “merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” In re Initial Pub. Offering Sec. Litig., 383 F. Supp. 2d 566, 574 (S.D.N.Y. 2005), aff’d sub nom. Tenney v. Credit Suisse First Boston Corp., No. 05 Civ. 3430, 2006 WL 1423785 (2d Cir. May 19, 2006); accord In re MF Glob. Holdings Ltd. Sec. Litig., 982 F. Supp. 2d 277, 302 (S.D.N.Y. 2013). In this context, the Court must draw reasonable inferences in favor of the nonmoving party. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, the requirement that a court accept the factual allegations in the claim as true does not extend to legal conclusions. See Iqbal, 556 U.S. at 678. In adjudicating a Rule 12(b)(6) motion, a court must confine its consideration “to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999). B. THE LANHAM ACT A plaintiff alleging trademark or trade dress infringement under the Lanham Act “must demonstrate that (1) it has a valid mark that is entitled to protection and that (2) the defendant’s actions are likely to cause confusion with that mark.” Tiffany and Co. v. Costco Wholesale Corp., 971 F.3d 74, 84 (2d Cir. 2020). In determining the second prong, courts use the eight-factor test articulated in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.3d 492 (2d Cir. 1961) (the “Polaroid Factors”): (1) the strength of the trademark; (2) the degree of similarity between the plaintiff’s mark and the defendant’s allegedly imitative use; (3) the proximity of the products and their competitiveness with each other; (4) the likelihood that the plaintiff will ‘bridge the gap’ by developing a product for sale in the defendant’s market; (5) evidence of actual consumer confusion; (6) evidence that the defendant adopted the imitative term in bad faith; (7) the respective quality of the products; and (8) the sophistication of the relevant population of consumers. Tiffany, 971 F.3d at 84-85 (footnotes omitted). C. TRADE DRESS INFRINGEMENT “Trade dress today encompasses a broad concept of how a product presented to the public looks, including its color, design, container, and all the elements that make up its total appearance.” GeigTech East Bay LLC v. Lutron Elec. Co., Inc., 352 F. Supp. 3d 265, 274 (S.D.N.Y. 2018) (brackets and citation omitted). In order for a product’s unregistered trade dress to be protected so as to meet the first prong of infringement under the Lanham Act, the trade dress must be “not functional,” and there must be “a likelihood of confusion between a claimant’s product and a competing product.” Id. The Second Circuit has noted that courts should “exercise particular caution, when extending protection to product designs.” Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 380 (2d Cir. 1997) (internal quotation marks and citation omitted). This is because “even the most unusual of product designs” are “almost invariably” meant “not to identify the source of the product, but to render the product itself more useful or more appealing.” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 114-15 (2d Cir. 2001) (internal quotation marks and citation omitted). “And trade dress claims raise a potent risk that relief will impermissibly afford a level of protection that would hamper efforts to market competitive goods.” Id. (internal quotation marks and citation omitted). Thus, a plaintiff asserting trade dress rights in the design of a product must show the following. First, the plaintiff must offer “a precise expression of the character and scope of the claimed trade dress.” GeigTech, 352 F. Supp. 3d at 274 (internal quotation marks and citation omitted). The product cannot be described “at an improper level of generality,” that is, a level of generality that suggests “the claimant seeks protection for an unprotectible style, theme or idea,” or “that the dress is no more than a concept or idea to be applied to particular products.” Yurman Design, 262 F.3d at 117 (internal quotation marks and citations omitted). “[A] plaintiff asserting that a trade dress protects an entire line of different products must articulate the specific common elements sought to be protected.” Id. at 118. Second, the plaintiff must show “that the matter sought to be protected is not functional.” GeigTech, 352 F. Supp. 3d at 275 (quoting 15 U.S.C. §1125(c)(4)). “In cases involving the aesthetic features of a product, trade dress is functional if the right to use it exclusively would put competitors at a significant non-reputation-related disadvantage.” Id. (citation omitted). Third, a plaintiff must show that its trade dress has acquired secondary meaning, which “has been interpreted by the Supreme Court to mean that a plaintiff must show that its trade dress is distinctive.” Id. A product can develop a secondary meaning in the marketplace and thereby acquire distinctiveness when “in the minds of the public, the primary significance of a product feature is to identify the source of the product rather than the product itself.” Id. (internal quotation marks, brackets, and citation omitted). Fourth, a plaintiff must show “that the defendant’s product is so similar that it is likely to cause confusion about the product’s actual source.” Id. While these elements must be proven in order to ultimately prevail on a claim for trade dress infringement, at the motion to dismiss stage, “a plaintiff need only articulate sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks and citation omitted). III. DISCUSSION The Court grants in part and denies in part the Letter Motion. Namely, the Court grants Equal Parts’s request to dismiss the counts stemming from its alleged infringement of Caraway’s trade dress. However, the Court denies Equal Parts’s request to dismiss the claims for trademark infringement stemming from its use of the Caraway Mark for keyword advertising. A. TRADE DRESS CLAIMS Caraway has failed to allege the first two requirements of a protectible trade dress. That is, Caraway has failed to provide a precise explanation of most of the claimed trade dress. Much of the description Caraway provides for its claimed trade dress is too vague to constitute an adequate description. Even with respect to the trade dress elements that have been described in sufficient detail, Caraway has not explained how these elements are distinctive for all but the Caraway Pans lid. Moreover, Caraway has failed to include any allegations to plausibly suggest that the claimed trade dress is nonfunctional. Thus, Caraway’s trade dress claims are dismissed. 1. A Precise Explanation of the Claimed Trade Dress Besides providing “an articulation of the specific elements which comprise its distinct dress,” Landscape Forms, 113 F.3d at 381, “[a] trade dress infringement claimant must enumerate which features of its purported dress are distinctive and indicate how they are distinctive.” GeigTech, 352 F. Supp. 3d at 276. One court in this district has held that allegations that a claimed trade dress “includes the size, shape and color of the product and its packaging” and conclusory statements that the products at issue “had unique elements of style, shape, angle, height, width, and/or slant” are insufficient because such “sweeping descriptions…in fact denote categories of features, not the features themselves.” Tracey Tooker & TT Ltd., Inc. v. Whitworth, 212 F. Supp. 3d 429, 434 (S.D.N.Y. 2016) (internal quotation marks and citations sufficient to sustain trade dress claims in light of the plaintiff’s general description of the products. Id. Similarly, in dismissing a complaint claiming trade dress over a line of watches, another court in this district stated that “a high level description of features of several watches, such as ‘gradient chain,’ ‘lobster claw closure,’ and ‘leaf-shaped logo,’ without allegations as to whether and how those features are distinctive,” failed to sufficiently allege a trade dress claim. Sara Designs, Inc. v. A Classic Time Watch Co. Inc., 234 F. Supp. 3d 548, 555 (S.D.N.Y. 2017). Here, the Court is persuaded that Caraway has sufficiently described the elements of the claimed trade dress. The description provided in this case falls somewhere between the highly specific description pled in GeigTech — which that court noted was “one of the best-pleaded examples of a trade dress infringement claim” it had ever reviewed, 352 F. Supp. 3d at 275 — and the more general descriptions provided in Tracey Tooker and Sara Designs. But while much of Caraway’s description is vague, Caraway has alleged some more specific elements of its claimed trade dress that are just enough to get Caraway’s description across the line. The Court first takes up the portions of Caraway’s description that fall on the more general side. The paragraphs of the Complaint dedicated to outlining Caraway’s trade dress contain many references to the “overall look and appearance” of the products, as well as “the visual flow of the handle,” “the curves, tapers and lines in the Caraway Pans,” “the design, style and visual appearance of these curves,” “the visual connection and relationship between the curves, tapers and lines,” and the like. (Complaint 28; see also id. 29.) These references are imprecise and “fail to give notice of what is claimed to competitors,” or even the Court. See YETI Coolers, LLC v. Imagen Brands, LLC, No. 16 Civ. 578, 2017 WL 2199012, at *4 (W.D. Tex. May 18, 2017) (finding that similar descriptions of “visual flow,” “curves, tapers, and lines, the design of the same, and the relationship among them” in the plaintiff’s claimed trade dress were too vague). And given the broad nature of these references, the photographs included in the Complaint cannot provide any further clarification as to what aspect of the pans are claimed. Such “unclear or overbroad” allegations “pose an anti-competitive risk.” Id. Nonetheless, there are other elements of Caraway’s claimed trade dress that are sufficiently specific. For instance, Caraway has described the interior of its frying pan as a “deep bowl-shape with high sidewalls.” (Complaint 28.) It has also identified its handle as having a “U-shaped, wide-stance space attaching the handle to the rounded pan” and notes “the open space formed between the edge of the handle at its center[] and the pan.” (Id. 29.) This description is bolstered by the attached photographs, which show clearly the “U-shaped” space to which Caraway refers. (Id. fig. 6.) Caraway has further described the Caraway Pans lid as a “flattened, disc-shape” and provided a photograph to that effect. (Id. 30, fig. 7.) Finally, Caraway has identified the cream and navy colors of its cookware and provided photographs of the same. (Id.
32-33, figs. 8-9.) Though not as specific as the descriptions given in GeigTech, the Court is satisfied that these descriptions are sufficiently concrete to put others on notice of what exactly Caraway claims as its protectable trade dress. But while Caraway has provided some “articulation of which of the plaintiff’s trade design elements are distinctive,” Caraway has failed to allege “how they are distinctive” as required for a valid trade dress infringement claim in this Circuit. See Sara Designs, 234 F. Supp. 3d at 555 (emphasis added). Caraway has only offered conclusory allegations that it “revolutionized” cookware and that its trade dress employs “unique, distinctive, and non-functional designs.” (Complaint
