The Ridge Wallet, LLC v. Bemmo Inc.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
THE RIDGE WALLET, LLC,
Plaintiff,
-against-
BEMMO INC.,
Defendant.
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MEMORANDUM & ORDER
23-CV-2091 (EK)(TAM)
ERIC KOMITEE, United States District Judge:
The Ridge Wallet, LLC brought this action against
Bemmo Inc. for patent and trade-dress infringement. 	Bemmo has
moved to dismiss under Federal Rule of Civil Procedure 12(b)(6).
For the following reasons, Bemmo’s motion is denied.
Background
The following facts are drawn from the First Amended
Complaint (“Compl.”), ECF No. 13, and they are presumed true for
purposes of this motion. 	Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555-56 (2007).1 	The Court also takes notice of certain
exhibits attached to the complaint and incorporated by reference
therein. 	E.g., Int’l Audiotext Network, Inc. v. Am. Tel. & Tel.
Co., 62 F.3d 69, 72 (2d Cir. 1995).
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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A. 	Ridge Wallet
The Ridge Wallet, LLC (“Ridge Wallet”) sells thin,
hard-shelled wallets, among other offerings. 	Compl. ¶ 15. 	As
of the filing of its complaint, Ridge Wallet had sold “over two
million” wallets, making its compact wallets some of “the most
distinct and recognizable” on the market. 	Id. ¶¶ 18-19.
Because Ridge Wallet’s design “has become synonymous with the
brand itself,” consumers have begun referring to competing
compact wallets as “Ridge knock off wallets” or “generic ridge
wallets.” 	Id. ¶¶ 23-24.
B. 	The ‘808 Patent
Ridge Wallet owns a patent protecting its wallet
design: U.S. Patent No. 10,791,808 (the “‘808 Patent”).2 	Id.
¶ 14. 	The ‘808 Patent describes “a compact wallet substantially
no larger than a credit card.” 	‘808 Patent 2:24-25.3 	Claims 1
and 14 of the patent are at issue in this case. 	See Compl.
¶ 70. 	Those claims are related and, in some ways, overlapping;
both detail a “compact wallet” with “at least two rigid plates,”
an “encircling elastic band,” a “channeling means” that
“allow[s] freedom for the dynamic extension and contraction of
the band,” and “an auxiliary feature removably attached to at
2 Ridge Wallet attached a copy of the ‘808 Patent to its complaint. 	See
‘808 Patent, ECF No. 13-12.
3 Page numbers in citations to record documents other than briefs and
patents refer to ECF pagination.
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least one of the . . . rigid plates.” 	‘808 Patent 6:40-65
(Claim 1); see also id. at 7:43-67 (Claim 14).
C. 	The Alleged Trade Dress
Ridge Wallet also seeks to protect its “Forged Ember”
trade dress, which
consists of the overall exterior appearance and
styling of a compact wallet, which has an
irregularly-shaped geometric red speckling pattern on
a carbon fiber surface, consisting of various shades
of grey and black, positioned to cover one or more of
the wallet’s exterior plates.
Joint Post-Hearing Status Report 2, ECF No. 20.4 	The complaint
includes an image of the Forged Ember wallet, taken from Ridge
Wallet’s website:
Compl. ¶ 81. 	Ridge Wallet alleges that the Forged Ember design
“has come to signify the high quality of the compact wallets” on
which it appears. 	Id. ¶ 33-34.
4 As discussed in more detail below, Ridge Wallet made a one-word
amendment to its trade-dress description after oral argument.
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D. 	Bemmo and the Allegedly Infringing Product
Bemmo Inc. (“Bemmo”) began selling a competing wallet
— the “Slim Wallet” — in 2021. 	Id. ¶ 50. 	Bemmo sells Slim
Wallets on websites including Amazon.com, WhizzCart, and Supply
Leader. 	Id. ¶ 54. 	It markets Slim Wallets as “lightweight”
wallets designed to tuck “away in your pocket with no bulge”
while still holding up to 10 cards and . . . 1-10 bills
comfortably.” 	Id. ¶¶ 52-53. 	Ridge Wallet provided the
following image of the Bemmo Slim Wallet:
Claims Chart 5, ECF No. 13-20.
E. 	Pre-litigation Notices
On January 10, 2023, and again on January 21, 2023,
Ridge Wallet filed requests with Amazon to take down Bemmo’s
Slim Wallet listings, stating they were infringing the ‘808
Patent. 	Compl. ¶ 57. 	Bemmo’s counsel responded with a letter
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demanding “prompt retraction of the complaints.” 	ECF No. 13-18,
at 2. 	Ridge Wallet then sent Bemmo’s counsel a cease-and-desist
letter in February, again accusing Bemmo of infringing the ‘808
Patent. 	ECF No. 13-19, at 2. 	One month later, Ridge Wallet
filed this action.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead facts sufficient “to state a claim to
relief that is plausible on its face.” 	Twombly, 550 U.S. at
570. 	A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 	The
Court must accept all factual allegations in the complaint as
true and draw all reasonable inferences in the plaintiff’s
favor. 	See Lundy v. Cath. Health Sys. of Long Island Inc., 711
F.3d 106, 113 (2d Cir. 2013).5 	At the same time, the Court is
“not bound to accept as true a legal conclusion couched as a
factual allegation.” Iqbal, 556 U.S. at 678.
5 Although Federal Circuit law governs the substantive issues raised in
this action, regional circuit law determines the applicable procedural
standard under Rule 12(b)(6). 	E.g., In re Bill of Lading Transmission &
Processing Sys. Patent Litig., 681 F.3d 1323, 1331 (Fed. Cir. 2012).
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Discussion
A. 	Patent Infringement
Ridge Wallet alleges that Bemmo has committed direct,
induced, and contributory infringement of the ‘808 Patent.
Compl. ¶¶ 70-72, 75-76. 	Although Ridge Wallet pleads all three
forms of infringement as a single cause of action, they are
appropriately considered as separate claims. 	See 35 U.S.C.
§ 271 (enumerating each form of patent infringement).
Bemmo also challenges Ridge Wallet’s ability to
recover punitive damages for willful infringement, as well as
its ability to recover pre-litigation damages. 	Because it would
be premature to assess claims for damages at this stage of this
case, the Court reserves judgment on both issues.
1. 	Direct Infringement
To directly infringe a patent, “the accused device
must contain each limitation of the [patent] claim, either
literally or by an equivalent.” 	TIP Sys., LLC v. Phillips &
Brooks/Gladwin, Inc., 529 F.3d 1364, 1379 (Fed. Cir. 2008).6 	At
6 When analyzing patent infringement, the Federal Circuit breaks down
the constitutive parts of the claimed invention, terming each part a
“limitation” or “element,” and looking at infringement on a part-by-part
basis. 	See V-Formation, Inc. v. Benetton Group SpA, 401 F.3d 1307, 1312
(Fed. Cir. 2005); see also Festo Corp. v. Shoketsu Kunzoku Kogyo Kabushiki
Co., Ltd., 234 F.3d 558, 563 n.1 (Fed. Cir. 2000). 	It has used both “the
term ‘element’” and “the term ‘limitation’” to refer to these constitutive
parts of a patent claim. 	Festo Corp., 234 F.3d at 563 n.1. 	This Order
adopts the linguistic convention promoted by the Federal Circuit in Festo
Corp: “It is preferable to use the term ‘limitation’ when referring to claim
language and the term ‘element’ when referring to the accused device,” thus
maintaining a clear distinction between the terms. 	Id.
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the motion-to-dismiss stage, however, Ridge Wallet “is not
required to plead infringement on an element-by-element basis.”
Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1352 (Fed. Cir.
2021). 	“Indeed, a plaintiff need not even identify which claims
[of a patent] it asserts are being infringed.” 	In re Bill of
Lading, 681 F.3d at 1335. 	The complaint need only place the
potential infringer on notice of “what products infringe [the
patent] and how.” 	Golden v. Intel Corp., No. 2023-1257, 2023 WL
3262948, at *2 (Fed. Cir. May 5, 2023).” 	Here, Ridge Wallet
sufficiently alleges that Bemmo’s Slim Wallet infringes Claims 1
and 14 of the ‘808 Patent. 	Compl. ¶ 70.
Bemmo’s motion to dismiss focuses on two related claim
limitations, one from Claim 1 and one from Claim 14. 	See
Defendant’s Memorandum of Law (“Def. Mem.”) 14-15, ECF No. 17-1.
This Order will refer to the first limitation as the Auxiliary
Feature Limitation:
an auxiliary feature removably attached to at least
one of the at least two rigid plates, the auxiliary
feature having a tang insertable into a recess formed
inside the at least two rigid plates, the tang having
a hook, the hook extending at an angle to the tang,
the hook engaging an undercut of the recess to prevent
inadvertent dislodgment of the auxiliary feature from
the recess.
‘808 Patent 6:55-61. 	This Order will refer to the second
limitation as the Recess Limitation:
a recess formed inside of at least one of the at least
two rigid plates, the recess operable to receive a
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tang of an auxiliary feature, the recess having an
undercut operable to engage a hook of the tang to
prevent inadvertent dislodgment of the auxiliary
feature from the recess when the auxiliary feature is
removably positioned in at least one of the at least
two rigid plates, a hook extending at an angle to the
tang.
Id. at 7:56-63.
Bemmo argues that Ridge Wallet has failed to state a
claim for direct infringement because neither the Auxiliary
Feature Limitation nor the Recess Limitation is present in the
Slim Wallet: per Bemmo, the Slim Wallet does not have “a hook
that engages with an undercut in the recess between the two
sandwiching plates of the wallet.” 	Def. Mem. 15. 	It instead
uses screws to connect its money clip to the body of the wallet,
making the clip non-removable. 	Id.
Bemmo’s argument is premature. 	Assessing the merits
of its description of the Slim Wallet would require the Court to
undertake detailed claim construction without the aid of a
Markman hearing, expert testimony, or discovery. 	When a
defendant’s argument turns on the construction of disputed
terms, “federal courts across the country routinely decline to
construe patent claims on a motion to dismiss because the
process for properly construing a patent claim is unsuited for a
motion to dismiss.” 	Everdry Marketing and Mgmt, Inc. v. Delves
& Giufre Enterprises, Inc., 319 F. Supp. 3d 626, 632 (W.D.N.Y.
2018) (citing cases); see also Chewy, Inc. v. Int’l Bus. Machs.
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Corp., No. 21-CV-1319, 2021 WL 3727227, at *9 (S.D.N.Y. Aug. 23,
2021) (such arguments are “best addressed after claim
construction”).
The question at this stage is not whether the Slim
Wallet actually meets the limitations, but whether Ridge
Wallet’s construction is “so unreasonable as to be amenable to
rejection on a motion to dismiss.” 	Everdry Marketing, 319 F.
Supp. 3d at 632. 	It clearly is not. 	Ridge Wallet’s Claims
Chart illustrates its allegations: it contends that the upper
ridge of the Slim Wallet’s auxiliary feature — the money clip —
bends, or “hooks,” at an angle to form a tang that engages with
and attaches to a recess in the wallet:
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Claims Chart 5. 	A hook is simply a “piece of metal, or other
hard or tough material, formed or bent into a curve or at an
angle, for catching, holding, sustaining, or pulling anything.”
Hook, WEBSTER’ S S ECOND N EW INTERNATIONAL DICTIONARY (2d ed. 1959).
Therefore, Ridge Wallet’s interpretation is at least plausible.
Bemmo’s citation to Ottah v. Fiat Chrysler, 884 F.3d
1135 (Fed. Cir. 2018), is inapposite. 	There, a pro se plaintiff
alleged that the defendants’ “mobile camera device[s]” infringed
a patent for “a removable book holder.” 	Id. at 1141. 	But the
plaintiff’s “only support” was “that the book holder [could]
hold items other than books, whereby cameras should be deemed
the equivalent of books.” 	Id. 	This case presents, at minimum,
a meaningfully closer question, as it compares wallets to
wallets, rather than books to cameras.7
Ridge Wallet has pled sufficient facts to state a
claim for direct infringement of the ‘808 Patent.
7 Bemmo also argues that the doctrine of prosecution-history estoppel
applies to limit the scope of the ‘808 Patent. 	Under that doctrine, “a
patentee cannot narrowly claim an invention to avoid prosecution scrutiny by
the PTO, and then, after patent insurance, use the doctrine of equivalents to
establish infringement because the specification discloses equivalents.”
Jonhson & Johnston Assocs. Inc. v. R.E. Serv. Co., 285 F.3d 1046, 1054 (Fed.
Cir. 2002) (en banc). 	But the only prosecution history Bemmo cites is a
notice of allowance explaining that the ‘808 Patent discloses prior art that
“does not have the limitation of the recess having an undercut operable to
engage a hook of the tang.” 	Def. Mem. 18 (citing 8/31/20 Notice of
Allowance). 	As discussed above, Ridge Wallet’s Claims Chart expressly labels
what it plausibly describes as a hook in the Slim Wallet money clips, and
that hook, it says, attaches to the main wallet using a recess. 	As such,
Bemmo’s estoppel argument fails at this stage.
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2. 	Induced and Contributory Infringement
Bemmo argues that Ridge Wallet’s induced- and
contributory-infringement claims should be dismissed because
Ridge Wallet has failed “to plausibly allege [Bemmo’s] knowledge
that the allegedly induced acts constitut[ed] patent
infringement.” 	Def. Mem. 18-19. 	Both indirect infringement
claims require the plaintiff to prove scienter. 	“To establish
contributory infringement, the patent owner must show,” among
other things, “that the accused infringer had knowledge of the
patent.” 	Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1326
(Fed. Cir. 2010). 	And induced infringement “requires knowledge
that the induced acts constitute patent infringement.” 	Glob.
Tech. Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011).8
Ridge Wallet has adequately pled scienter. 	The
complaint alleges that in early 2023, “Ridge filed Amazon
takedown requests asserting that Bemmo’s Slim Wallets infringed
the ‘808 Patent.” 	Compl. ¶ 57. 	When Bemmo wrote “demanding a
prompt retracting of the complaints,” id. at ¶ 58, Ridge Wallet
responded “with its own Cease and Desist letter,” “specifically
charging it with infringement of at least the ‘808 Patent.” 	Id.
at ¶ 59. 	Given that exchange, Ridge Wallet plausibly alleges
8 Bemmo also argues that Ridge Wallet has not adequately pled direct
infringement, which is a prerequisite to pleading either form of indirect
infringement. 	Alloc, Inc. v. Int’l Trade Comm’n, 342 F.3d 1361, 1374 (Fed.
Cir. 2003). 	The Court already addressed Bemmo’s direct-infringement
arguments in Section III.A.1, supra.
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that Bemmo knew its subsequent conduct, at least, was
infringing.
Bemmo counters that this exchange shows that it “has
always maintained that its accused wallets . . . do not directly
infringe the ‘808 Patent.” 	Def. Mem. 20. 	But a defendant’s
asserted “good-faith belief in noninfringement” does not require
dismissal at this stage — rather, it “presents a factual
question.” 	Smith & Nephew Inc. v. Arthrex, Inc., 603 F. App’x
981, 990 (Fed. Cir. 2015). 	Ridge Wallet’s theories of indirect
infringement therefore survive the motion to dismiss.
3. 	Willful Infringement
Bemmo also challenges Ridge Wallet’s claim for
“punitive or increased damages” under Section 284 of the Patent
Act, which can be recovered “in a case of willful or bad-faith
infringement.” 	Halo Elecs., Inc. v. Pulse Elecs., Inc., 579
U.S. 93, 100 (2016). 	“Whether plaintiff can ultimately show
that it is entitled to enhanced damages for . . . egregious
infringement behavior is not relevant to the Court’s
consideration of a motion to dismiss.” 	SharkNinja Operating LLC
v. Dyson, Inc., No. 23-CV-12372, 2024 WL 3596898, at *7 (D.
Mass. July 30, 2024); cf. City Nat’l Specialty Co. v. Ashley
Furniture Indus., LLC, No. 21-CV-05521, 2022 WL 2918121, at *3
(E.D.N.Y. July 21, 2022) (“Courts routinely deny motions to
dismiss requests for punitive damages as procedurally improper
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because such a request is not a cause of action subject to
dismissal.”) 	“[B]ecause willful infringement primarily is a
damages issue, the Court reserves ruling at this time.” 	Klauber
Bros., Inc. v. QVC, Inc., No. 1:19-CV-09321, 2020 WL 7029088, at
*2 n.1 (S.D.N.Y. Nov. 30, 2020).
4. 	Pre-Litigation Damages
Bemmo goes on to argue that Ridge Wallet’s claim for
pre-litigation damages should be dismissed because Ridge Wallet
did not provide Bemmo with notice of infringement prior to the
commencement of this lawsuit. 	See Def. Mem. 21-23 (citing 35
U.S.C. § 287(a) (the “marking statute”)).
Section 287 does not provide a distinct cause of
action, either. 	It is titled “Limitation on damages and other
remedies.” 	35 U.S.C. § 287. 	As applicable here, it provides
that when an inventor fails to provide adequate notice to the
public that a given item is patented, “no damages shall be
recovered by the patentee in any action for infringement, except
on proof that the infringer was notified of the infringement and
continued to infringe thereafter.”
Ridge Wallet responds that it did provide adequate
notice by “virtually” marking the product on its website, and
alleged as much in its complaint. 	Compl. ¶ 77. 	Moreover, as
noted above, Ridge Wallet alleges that it put Bemmo on notice
through its cease-and-desist letter, which issued prior to the
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commencement of this litigation. 	Compl. ¶¶ 59-61; see also
Section III.A.2, supra. 	Given that, Bemmo’s argument is not, at
this stage, a basis to exclude all prelitigation damages. 	And
courts in the Second Circuit routinely hold that it is
“premature” at the motion to dismiss stage to engage in more
granular determinations regarding what form of damages may be
appropriate. 	See, e.g., Cicel (Beijing) Sci. & Tech. Co. v.
Misonix, Inc., No. 2:17-CV-1642, 2017 WL 4535933, at *5
(E.D.N.Y. Oct. 7, 2017).
In pressing the argument now, Bemmo relies on district
court decisions like Blackbird Tech LLC v. Argento SC By Sicura,
Inc., No. 21-CV-11018, 2022 WL 3701084, at *2. 	Blackbird held
that “[w]hen a complaint does not adequately allege compliance
with the marking statute, a claim for pre-litigation damages may
be dismissed on a Rule 12(b)(6) motion.” 	Id. 	These cases
typically rely on Lans v. Digital Equip. Corp., 252 F.3d 1320
(Fed Cir. 2001).
But these decisions appear to overread the Lans
decision. 	There, the marking issue was dispositive because the
plaintiff failed to provide any notice of infringement at any
time before the patent expired, by way of marking or otherwise.
See Lans, 252 F.3d at 1328 (“Because Uniboard’s licensees did
not mark their products and because Uniboard did not inform the
[defendant] Computer Companies of infringement before expiration
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of the ‘986 patent, Section 287(a) prevents Uniboard from
collecting damages from the Computer Companies.” (emphasis
added)). 	That is not the case here. 	Accordingly, the Court
declines to resolve Ridge Wallet’s prayer for pre-litigation
damages at this stage.
B. 	Trade-Dress Infringement
Ridge Wallet also alleges that Bemmo has committed
trade-dress infringement in violation of Section 43(a) of the
Lanham Act. 	To successfully plead trade-dress infringement, a
plaintiff must (1) “articulate with precision the specific
components of its claimed trade dress”; and allege that (2) the
claimed trade dress is inherently distinct or has acquired
secondary meaning; (3) the claimed trade dress is non-
functional; and (4) there is a likelihood of confusion between
its product and the defendant’s product. 	Cardinal Motors, Inc.
v. H&H Sports Prot. USA Inc., 128 F.4th 112, 121-22 (2d Cir.
2025). 	Ridge Wallet has met each pleading requirement.
1. 	Precise Articulation
To survive a motion to dismiss, the claimed trade
dress “must be sufficiently precise as to some specific
combination of components present in the trade dress (such as
materials, contours, sizes, designs, patterns, and colors) so as
to permit courts and juries to adequately evaluate the
underlying claims at the appropriate juncture.” 	Id. at 124-25.
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Ridge Wallet’s description of its Forged Ember trade dress
easily meets this standard at this stage. 	Ridge Wallet defines
the trade dress as (1) a “compact wallet,” (2) that “has an
irregularly-shaped geometric red speckling pattern,” (3) “on a
carbon fiber surface, consisting of various shades of gray and
black,” (4) “positioned to cover one or more of the wallet’s
exterior plates.” 	Compl. ¶ 44. 	Ridge Wallet thus identifies a
“specific combination” of materials, patterns, and colors that
make up its claimed trade dress. 	Cardinal Motors, 128 F.4th at
124; see, e.g., Muddy Bites, Inc. v. Evergreen USA LLC, No. 24-
CV-07089, 2025 WL 1079494, at *7 (S.D.N.Y. Apr. 9, 2025)
(finding plaintiff’s identification of specific imagery and
colors on a “rectangular, resealable container” sufficient).9
Bemmo argues that Ridge Wallet’s description of the
Forged Ember trade dress is imprecise in that it conflicts with
other portions of the complaint. 	Specifically, Ridge Wallet
alleged in several paragraphs of the complaint that it uses
Forged Ember “on a variety of merchandise and products,”
9 At oral argument, and in its briefing, Bemmo objected to Ridge
Wallet’s use of the word “includes” in its trade-dress description, which it
argued was too “open-ended.” 	See, e.g., Def. Reply Br. 1, ECF No. 17-3.
Ridge Wallet agreed to substitute the word “has.” 	Joint Post-Hearing Status
Report 1-2. 	When a plaintiff seeks to amend their complaint while a motion
to dismiss is pending, courts may either deny “the motion as moot or
consider[] the merits of the motion in light of the” amendment. 	Lopez-
Serrano v. Rockmore, 132 F. Supp. 3d 390, 398 (E.D.N.Y. 2015). 	Because Bemmo
had an adequate opportunity to respond to the amendment, the Court will
consider the merits of Ridge Wallet’s amended description, rather than
beginning motion practice anew to address this one-word change. 	See id. at
399.
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including key chains and knives. 	Def. Mem. 5 (citing Compl.
¶¶ 14, 26, 32). 	But Ridge Wallet has reiterated that one
element of the Forged Ember trade dress it seeks to protect here
is the “styling of a compact wallet.” 	See Joint Post-Hearing
Status Report 1-2. 	And no products other than wallets are
relevant to Ridge Wallet’s claims against Bemmo.
2. 	Secondary Meaning
To assess the strength of any secondary meaning,
courts consider “(1) advertising expenditures, (2) consumer
studies linking the [dress] to a source, (3) unsolicited media
coverage of the product, (4) sales success, (5) attempts to
plagiarize the dress, and (6) length and exclusivity of the
[dress’s] use.”10 	Christian Louboutin S.A. v. Yves Saint Laurent
Am. Holdings, Inc., 696 F.3d 206, 226 (2d Cir. 2012). 	Because
this is a fact-intensive inquiry, it “generally cannot be
resolved on a motion to dismiss.” 	Deckers Outdoor Corp. v. Next
Step Grp., Inc., No. 23-CV-02545, 2024 WL 3459609, at *4
(S.D.N.Y. July 18, 2024) (collecting cases).
Ridge Wallet has adequately pled secondary meaning.
It “has spent millions of dollars on marketing, advertising, and
promoting its Forged Ember compact wallets.” 	Compl. ¶ 28. 	Its
trade dress has “received significant unsolicited coverage,”
10 Ridge Wallet seemingly concedes that the Forged Ember trade dress is
not “inherently distinctive.” 	See Pl.’s Resp. in Opp’n to Def. Bemmo Inc.’s
Mot. to Dismiss 8, ECF. No. 17-2.
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with “many reviewers . . . simply refer[ring] to the wallet as
‘The Ridge Forged Ember Wallet.’” 	Id. at ¶¶ 31, 35. 	Sales have
been substantial — Ridge Wallet “has sold millions of dollars’
worth of products that display the Forged Ember Trade Dress.”
Id. ¶¶ 27, 32. 	And Ridge Wallet has pursued past infringers via
Amazon takedown requests, cease-and-desist letters, litigation,
and the like. 	Id. ¶ 37. 	The mere “lack of consumer surveys” in
a complaint, see Def. Mem. 9, is not a basis for dismissal.
GeigTech East Bay LLC v. Lutron Elecs. Co., Inc., 352 F. Supp.
3d 265, 282 (S.D.N.Y. 2018).
3. 	Non-Functionality
Trade dress is functional — and therefore unprotected
— if it “is essential to the use or purpose of the article or
affects the cost or quality of the article,” Inwood Labs, Inc.
v. Ives Labs, Inc., 456 U.S. 844, 851 n.10 (1982), such that
allowing exclusive use of the trade dress “would put competitors
at a significant non-reputation-related disadvantage.”
Qualitext Co. v. Jacobson Prods., Co., 514 U.S. 159, 165 (1995).
“[F]unctionality is a question of fact, [and] it is often
premature to conclude that a plaintiff has failed to establish
functionality at the motion to dismiss stage.” 	GeigTech, 352 F.
Supp. 3d at 278.
Ridge Wallet’s allegations of non-functionality are
sufficient at this stage. 	Compact wallets need not be decorated
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with “Forged Ember” to sell or to perform their function. 	That
much is evident from Ridge Wallet’s own product offerings, which
include a “host of other compact wallets” that “do not use the
Forged Ember Trade Dress.” 	Compl. ¶ 48. 	Because there are
“numerous variations and alternatives” to Forged Ember and
“there is no evidence that [Ridge Wallet’s] exclusive use of
this secondary packaging would put any competitors at a
significant disadvantage,” the trade dress is appropriately
deemed non-functional. 	L’Oreal USA, Inc. v. Trend Beauty Corp.,
No. 11-CV-4187, 2013 WL 4400532, at *21 (S.D.N.Y. Aug. 15, 2013)
(collecting cases).
Bemmo argues, to the contrary, that “[t]he colors
black and red are basic colors used in fashion articles.” 	Def.
Mem. 10. 	But “where, as here, the asserted trade dress extends
to the overall look of the combination of features comprising a
product . . . the Court must evaluate the distinctiveness and
functionality of those features taken together, not in
isolation.” 	TushBaby, Inc. v. Jinjang Kangbersi Trade Co., No.
24-CV-6150, 2024 WL 4627452, at *5 (S.D.N.Y. Oct. 30, 2024).
And, taken as whole, Forged Ember consists of a “distinctive and
arbitrary arrangement[] of predominantly ornamental features.”
Christian Louboutin, 696 F.3d at 222.
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4. 	Likelihood of Confusion
“[W]hether or not there is a likelihood of confusion
is a question of fact,” DC Comics Inc. v. Reel Fantasy, Inc.,
696 F.2d 24, 26 (2d Cir. 1982), “that ordinarily does not lend
itself to a motion to dismiss.” 	Van Praagh v. Gratton, 993 F.
Supp. 2d 293, 303 (E.D.N.Y. 2014). 	To assess this element,
courts apply the familiar Polaroid factors:
(1) strength of the plaintiff’s trade dress; (2)
similarity of the trade dresses; (3) proximity of the
products in the marketplace; (4) likelihood that the
plaintiff will bridge the gap between the products
(enter a market related to that in which the defendant
sells its product); (5) evidence of actual confusion;
(6) the defendant’s bad faith; (7) quality of the
defendant’s product; and (8) sophistication of the
relevant consumer group.
Nat. Organics, Inc. v. Nutraceutical Corp., 426 F.3d 576, 578
(2d Cir. 2005). 	But “[i]t is well settled” that courts need not
address all eight factors “to find adequate pleading of a
likelihood of confusion.” 	World Trade Ctrs. Ass’n, Inc. v. Port
Auth. of New York & New Jersey, No. 15-CV-7411, 2016 WL 8292208,
at *2 (S.D.N.Y. Dec. 15, 2016) (collecting cases).
Ridge Wallet has adequately pled likelihood of
confusion. 	Taking its allegations as true, Ridge Wallet’s
Forged Ember trade dress is strong — the company has
“scrupulously enforced and protected” the mark “against past
infringers.” 	Compl. ¶ 37; see The Morningside Grp. Ltd. v.
Morningside Capital Grp., LLC, 182 F.3d 133, 139 (2d Cir. 1999)
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(“[S]uccessful policing of a mark adds to its strength.”). 	And
Ridge Wallet and Bemmo’s wallets are clearly sold in the same
market — the online market for compact wallets. 	Compl. ¶¶ 29,
54 (specifically alleging that both wallets are sold on Amazon).
In response, Bemmo falls back on its argument
regarding the generic nature of the components of Ridge Wallet’s
alleged trade-dress. 	Def. Mem. 12-13. 	But a side-by-side
comparison of the two products, see id. at 13, only underscores
the presence of a specific combination of aesthetic elements
that might lead to consumer confusion.
Conclusion
For the foregoing reasons, Bemmo’s motion to dismiss
is denied.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	December 9, 2025
Brooklyn, New York
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