The Second Circuit requires plaintiffs pleading claims of trade dress infringement under the Lanham Act to articulate precisely the features of their trade dresses. See, e.g., Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 380-81 (2d Cir. 1997); Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 116-18 (2d Cir. 2001). To plead a claim for trade dress infringement based on product design, a plaintiff must plead that (1) its product design is distinctive, (2) there is a likelihood of confusion between its product design and that of the defendant, and (3) its product design is not functional. See Yurman Design, 262 F.3d at 115-16. Courts have been cautious about extending protection to to ordinary product designs because it "would create a monopoly in the goods themselves" and "hamper efforts to market competitive goods." Landscape Forms, 113 F.3d at 380; see also Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 32-33 (2d Cir. 1995) (noting that trade dress law protects only "the concrete expression of an idea" and not "an idea, a concept, or a generalized type of appearance"). 

Before a court may evaluate the three elements of a trade dress infringement claim, however, a plaintiff must clearly articulate what it seeks to protect. 

This so-called "articulation requirement" arises from the recognition that "there is no question that trade dress may protect the 'overall look' of a product." Landscape Forms, 113 F.3d 381. It is often a combination of components, rather than individual ones, that make up the overall look of a product and that renders the product's trade dress protectable. Id. "[F]ocus on the overall look of a product does not permit a plaintiff to dispense with an articulation of the specific elements which comprise its distinct dress." Id. The articulation requirement thus requires trade dress plaintiffs bringing claims of product design infringement to separate out and clearly identify in a list the discrete components that make up its trade dress. See McCarthy, supra, § 8:3; Yurman Design, 262 F.3d at 116 ("[A] plaintiff seeking to protect its trade dress in a line of products must articulate the design elements that compose the trade dress."). 

In Cardinal Motors, Inc. v. H&H Sports Prot. USA, Inc., No. 23-7586-cv, __ F.4th __ (2d Cir. Feb. 6, 2025), the Court has clarified that the Second Circuit's "requirement that a plaintiff articulate precisely the features of its trade dress at the pleading stage does not also require plaintiffs to articulate the distinctiveness of that trade dress." 

Here, Cardinal designs motorcycle helmets such as "The Bullitt" to other companies such as Bell Sports. H&H manufactures and sells a motorcycle helmet called the "Torc T-1" that is similar to The Bullitt. 

Cardinal filed suit alleging that H&H's Torc T-1 unlawfully copied The Bullitt. The district court dismissed the complaint without prejudice for failing "to adequately plead the claimed trade dress with precision or with allegations of its distinctiveness." On appeal, the Second Circuit concluded that the district court erred in its application of the articulation requirement in trade dress infringement cases. 

Distinctiveness is an element of a trade dress infringement claim to be pleaded in a complaint and shown at trial. See Samara Bros., 529 U.S. at 210. The articulation requirement, by contrast, is a pleading requirement under which plaintiffs must articulate precisely the components that compose their claimed trade dress. See Yurman Design, 262 F.3d at 116. And because the prevailing purpose of the articulation requirement is to help courts (and eventually juries) evaluate the elements of a trade dress claim, see Landscape Forms, 113 F.3d at 381; Yurman Design, 262 F.3d at 117, a plaintiff meets this requirement by describing with precision the components -- i.e., specific attributes, details, and features -- that make up its claimed trade dress. The exact level of precision required will no doubt vary from case to case and the specific trade dress alleged, but generally, the description offered 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. And these articulation requirements apply regardless of whether the asserted trade dress derives from a line of products or from an individual product.

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Whether, once a plaintiff has met the articulation requirement, it has sufficiently pleaded the three elements of an infringement cause of action --  distinctiveness, likelihood of confusion, and nonfunctionality -- is a different question. The articulation requirement therefore achieves multiple aims: it permits courts to dismiss infringement claims before having to analyze the underlying merits if the alleged trade dress is impermissibly vague, while also ensuring that courts and juries have before them only those sufficiently precise trade dresses that will aid in their determination of the merits of an infringement claim. See, e.g., Yurman Design, 262 F.3d at 117 ("We need not decide whether Yurman could formulate a description of design elements to support a trade dress claim sufficient to protect a line of Yurman jewelry, because Yurman has not even offered one for our consideration."). And crucially, the requirement achieves these aims while ensuring that infringement claims by plaintiffs who articulate the components of their trade dresses with the requisite precision are not prematurely dismissed.

The Court also noted that the Sixth Circuit has explicitly distinguished the articulation requirement from the distinctiveness requirement. See, e.g., Gen. Motors Corp. v. Lanard Toys, Inc., 468 F.3d 405, 415-16 (6th Cir. 2006) ("Before addressing the application of the trade dress infringement elements, we must first address [defendant's] challenge to . . . what that trade dress is comprised of."). Other courts also analyze a plaintiff's articulation of the components of their claimed trade dress separately from its distinctiveness. See, e.g., Joason Scott Collection, Inc. v. Trendily Furniture, LLC, 68 F.4th 1203, 1213-14 (9th Cir. 2023); Bimbo Bakeries USA, Inc. v. Sycamore, 29 F.4th 630, 637, 639 (10th Cir. 2022); Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 310 (3d Cir. 2014) (referring to distinctiveness but dismissing a claim because the plaintiff "failed to give [d]efendants adequate notice of what overall look it wishes to protect"); Test Masters Educ. Servs., Inc. v. State Farm Lloyds, 791 F.3d 561, 567 (5th Cir. 2015) (finding that the plaintiff did not allege a trade dress infringement claim because the plaintiff did not provide any "allegations describing the content or overall image of [the plaintiff's] website").

After concluding that Cardinal had offered a precise articulation of its trade dress in its pleadings, the Court cautioned that the question still remains as to whether Cardinal has pleaded, as a matter of law, that its dress is protectable, namely, that the trade dress is distinctive, likely to cause confusion, and nonfunctional.