MEMORANDUM AND ORDER Plaintiff Soho Studio LLC d/b/a TileBar (“TileBar”) filed this action against defendants Epstone Inc. d/b/a Artistic Tile Inc. and Artistic Tile Inc. (collectively, “Artistic Tile”), alleging trademark infringement under the Lanham Act, 15 U.S.C. §1125(a), unfair competition under New York common law, and deceptive acts and practices under New York General Business Law, N.Y. Gen. Bus. L. §349. TileBar also seeks a declaratory judgment regarding the parties’ rights and duties with respect to certain copyright rights asserted by Artistic Tile. Artistic Tile now moves to dismiss the Lanham Act, common law, and New York General Business Law claims for failure to state a claim. For the following reasons, Artistic Tile’s motion to dismiss is granted with respect to the New York General Business Law claim and denied with respect to the Lanham Act and common law claims. BACKGROUND The following facts are taken from the first amended complaint and assumed true for the purposes of this order. Plaintiff TileBar is a “creator and nationwide distributor of tiles, stone, and vinyl flooring.” First Am. Compl. (“FAC”) 14 (Dkt. #13). TileBar uses various marks to identify its tile products and collections, including but not limited to the “TESSUTO” and “EMPIRE” marks. Id. 15. TileBar is “one of the fastest growing companies in the tile industry…due to its ability to reach a widespread audience across multiple channels at a considerably low cost compared to overall sales.” Id.
26-27. “Whereas the tile industry had previously relied on a wholesale-centric model,” id. 25, “TileBar was one of the first tile manufacturers in the industry to use its website as a direct-to-consumer distribution channel,” id. 30. TileBar’s “market advantage” is “largely fueled by” its “extensive online presence,” id. 28, which includes both its “popular tilebar.com website” and various social media accounts, id. 29. TileBar has over 250,000 followers on Instagram and its website generated more than 63,000,000 page views in 2022. Id.
