Abercrombie & Fitch Stores, Inc. v. American Eagle Outfitters, Inc.

OPINION

This case pits an old hand at trademark law against the new kid on the block: Abercrombie & Fitch sued American Eagle Outfitters to stop American Eagle from infringing what A & F describes as its unregistered “trade dress,” made protecta-ble by Section 43(a) of the Lanham Act. A & F claimed that AE impermissibly copied the designs of certain articles of clothing, in-store advertising displays, and a catalog. The district court granted summary judgment in favor of American Eagle, reasoning that Abercrombie & Fitch had sought protection for something that did not constitute trade dress at all. Abercrombie timely appealed. Today “we relieve A & F of some of its unhappiness but not of all.” Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 7 (2d Cir.1976). We affirm the judgment of the district court, albeit for different reasons: the clothing designs A & F seeks a monopoly on are functional as a matter of law, and therefore not protectable as trade dress; the A & F Quarterly constitutes non-functional distinctive trade dress, but the American Eagle catalog is not confusingly similar to it, as a matter of law.

I

Abercrombie & Fitch Stores, Inc. (“Abercrombie” or “A & F”) describes itself as a “retailer of men’s and women’s casual clothing, such as t-shirts, outerwear, sweatshirts, woven shirts, sweaters, jeans, khakis, shorts, baseball caps, belts, socks, and other accessories ... designed primarily to appeal to young men and women of college age.” It sells its products nationwide through 157 retail stores and a mail-order catalog under the registered trademarks and service marks ABER-CROMBIE & FITCH, A & F CO, A & F, and variations thereof. Founded in 1892, Abercrombie was acquired by The Limited, Inc., in 1988. Since then, it has enjoyed a remarkable rejuvenation of its brand, selling in excess of $1.4 billion in merchandise (through June 1998) and expending more than $26 million on marketing its brand, including advertisements in national and fashion magazines.

*625 A & F identifies an “Abercrombie brand” as having “unique and inherently distinctive features” and refers to such as its trade dress. This trade dress, Aber-crombie claims, comprises nine features:

1) Use of the Abercrombie marks, in particular the A & F trademark in Universe Bold Condensed typeface.

2) Use of the word performance on labels and advertising and promotional material to convey the image of an active line of casual clothing.

3) Use of such words and phrases as authentic, genuine brand, trademark, and since 1892 on labels and advertising and promotional material to convey the reliability of the Abercrombie brand.

4) Use of the word outdoor on labels and advertising and promotional materials to convey the image of a rugged outdoor line of casual clothing.

5) Use of design logos, such as the ski patrol cross and lacrosse sticks, and product names for the types of clothing, such as “field jersey,” to convey the image of an athletic line of casual clothing.

6) Use of primary color combinations, such as red, blue, grey, tan, and green in connection with solid, plaid, and stripe designs, to create a consistent design and color palette.

7) Use of all natural cotton, wool, and twill fabrics to create a consistent texture palette.

8) The creation of a cutting edge “cool” image through photographs and advertising and promotional material, such as the A & F Quarterly (the “catalog” or “Quarterly”). The Quarterly presents the Aber-crombie brand and trade dress in a unique manner: namely, it features the Aber-crombie brand and trade dress in a “cutout” or “clothesline” style and uses color bars to illustrate the available colors of the item, while combining a consistent conceptual theme with a lifestyle editorial content of music, electronics, books, and magazine features. The catalog is printed on cougar vellum paper, which is unique for a catalog.

9)The creation of a consistent merchandise look in A & F stores through the use of in-store signage and display setups and through the use of the “Abercrombie sales associate team,” which is comprised primarily of college students. See Compl. ¶7.

American Eagle Outfitters, Inc. (“American Eagle” or “American”), sells essentially the same variety of clothing and products in its 300 stores nationwide, under the trademarks and service marks AMERICAN EAGLE OUTFITTERS and AE, and generates approximately $300 million in annual sales. American has been a retailer since at least 1994, although many of its products describe the company’s vintage as 1977. Abercrombie accuses American of capitalizing on the former’s success in the market by selling confusingly similar products and marketing them in a way confusingly similar to Abercrombie’s image. A & F asserts that its premiere issue of the Quarterly, the Fall 1997 issue, was copied by American Eagle, whose own catalog featured the same products (such as shirts, jeans, sweatshirts, boxer shorts, sweater vests, jackets, and pajamas), containing the same colors, having the same designs, being made from the same fabrics, and bearing the same product names (e.g., “vintage” sweatshirts and “field jerseys”). A & F also claims that the paper, page layouts, lifestyle editorial content, manner of displaying merchandise, and typeface in American’s catalog are identical or confusingly similar to the Quarterly. Abercrombie introduced a memorandum from American marketing executives directing American store managers to in *626 spect the windows, lead table, and lease-line signs of Abercrombie stores every week and report on A & F’s presentation. (“Attention store manager-We need you to tell us what Abercrombie & Fitch is marketing!!!”). 1 During litigation in the district court, American declined to contest the allegation that it intentionally copied the various aspects of Abercrombie’s claimed trade dress enumerated in the complaint.

On June 2, 1998, Abercrombie filed suit in the district court claiming that American infringed upon its unregistered trade dress, in violation of § 43(a) of the Lan-ham Act, 15 U.S.C. § 1125(a), the Ohio common law of trade dress protection and unfair competition, and the Ohio Deceptive Trade Practices Act, O.R.C. § 4165.01 et seq. 2 American served its Answer on August 3, 1998, and simultaneously filed its motion for summary judgment. On November 30, 1998, the district court granted in part American’s motion to stay discovery: the court ruled that discovery on the issue of American’s intentional copying was inappropriate during the pendency of American’s summary judgment motion because American had admitted intentional copying for purposes of the motion, but the court permitted discovery on the question of use of similar designs and marketing approaches by third-party retailers, which issue American raised in its motion.

On July 12, 1999, the district court granted American’s motion for summary judgment in its entirety. The court recognized that unregistered trade dress protection can extend to “the image and overall appearance of the product.” The court described trade dress as 1) either a singular feature or combination of features that takes on a distinct arrangement, 2) intended by the maker to permit the public to identify it as coming from a particular source, and 3) having a tendency to do so. The court noted that trade dress is pro-tectable under either of two circumstances: the dress is inherently distinctive or has acquired secondary meaning. The district court assumed, for purposes of the motion, that Abercrombie’s arrangement of words, colors, and format had acquired secondary meaning, but reasoned that the motion turned on the question of whether the elements described in Abercrombie’s complaint constituted trade dress at all. According to the district court, trade dress protection is not available when a) the means of dressing the product is functional or descriptive, or b) the claimed trade dress amounts to an abstract image or marketing approach.

The court concluded that, regardless of any public identification of the claimed trade dress with Abercrombie, “it is simply too descriptive and generic to qualify for Lanham Act protection.” The court remarked, “retailers must be free to use common verbal or pictorial descriptions of their goods ... [including] such matters as showing the clothing in ‘cutout’ fashion ... using combinations of standard colors ... universally-recognized patterns ... and common fabrics ... in clothing design and *627 manufacture.... All of these factors are both generic and descriptive.... ”

The Court recognize[d] that a combination of generic or descriptive elements can sometimes create a unique look that is protectable, but there is nothing arbitrary or fanciful, or in any way distinctive, about the combination of these elements in a clothing catalog that would make the whole of the “Abercrombie Brand,” at least as it relates to the descriptive language, color combinations, and cutout style, something more than the sum of its non-protectable parts. That observation applies equally to the use of words claiming that the clothing is “authentic” and the use of A & F’s own trademark....

The court lastly considered the “element of the Abercrombie Brand” comprising its method of appealing to the “cool” or “cutting edge” consumer by adding lifestyle content to its catalog, and held that “the concept of marketing products to ‘cool’ or ‘cutting edge’ consumers by appealing to other aspects of their lifestyle [is not] pro-tectable.” The court entered judgment for American. A & F moved for reconsideration, pursuant to Fed.R.Civ.P. 59(e), introducing certain email messages as evidence of consumer confusion. The court doubted whether the evidence was newly discovered, but examined and rejected it as irrelevant to the district court’s judgment, which turned not on secondary meaning or confusion but on the unprotectable nature of Abercrombie’s claimed trade dress. Aber-crombie timely appealed.

II

We turn first to a threshold issue: the timing of summary judgment. “[S]ummary judgment is improper if the non-movant is not afforded a sufficient opportunity for discovery.” Vance v. United States, 90 F.3d 1145, 1148 (6th Cir.1996) (citing White’s Landing Fisheries, Inc. v. Buchholzer, 29 F.3d 229, 231-32 (6th Cir.1994)); accord Plott v. General Motors Corp., 71 F.3d 1190, 1195 (6th Cir.1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The non-movant bears the obligation to inform the district court of its need for discovery, however. This court reviews for abuse of discretion a claim that summary judgment was prematurely entered because additional discovery was needed, and the argument is not preserved for appeal unless it is first advanced in the district court. See Vance, 90 F.3d at 1149 (citing Plott, 71 F.3d at 1196). Thus, before a summary judgment motion is decided, the non-movant must file an affidavit pursuant to Fed.R.Civ.P. 56(f) that details the discovery needed, or file a motion for additional discovery. If he does neither, “this court will not normally address whether there was adequate time for discovery.” Plott, 71 F.3d at 1196. If the non-movant makes a proper and timely showing of a need for discovery, the district court’s entry of summary judgment without permitting him to conduct any discovery at all will constitute an abuse of discretion. See White’s Landing Fisheries, 29 F.3d at 231-32.

Although American filed its answer, its summary judgment motion, and its motion to stay discovery simultaneously, the district court resolved the two motions separately. In responding to the motion to stay discovery, which the court addressed first, Abercrombie filed neither a Fed.R.Civ.P. 56(f) affidavit nor requests for additional discovery. However, its memorandum in opposition to the motion explained its need for discovery and cited White’s Landing Fisheries, 29 F.3d at 231-32, in support of its position that staying discovery would prejudice its ability to respond to American’s summary judgment *628 motion. Abercrombie has preserved the issue of adequate discovery for our review because requiring, as a part of its response to the summary judgment motion, a Rule 56(f) affidavit, a fresh motion for new discovery, or recitation of arguments rejected by the district court in the order staying discovery simply to preserve the matter would ignore Abercrombie’s arguments in opposition to the simultaneously filed motion for stay and unduly exalt form over substance. Making the arguments once is enough. 3

The district court’s November 30, 1998, order granting American’s motion to stay discovery recited

the Court’s view that additional evidence of intentional copying at this stage [beyond American’s limited admission] would not add materially to the Court’s analysis of the protectability of A & F’s trade dress as placed in issue by American Eagle’s summary judgment motion. Under all of these circumstances, the Court believes that the best course of action is to defer discovery of highly sensitive and competitive information until after this threshold question [of the existence of protectable trade dress] has been addressed.

Abercrombie argues that, beyond evidence of intentional copying, it sought “discovery concerning the uniqueness of the Abercrombie Trade Dress, which had acquired secondary meaning among consumers, and concerning the likelihood of confusion with the American Trade Dress.” Appellant’s Br. at 39 (emphasis added). Abercrombie believes further discovery would have substantiated its claims that a) American intentionally copied the Abercrombie trade dress to capitalize on its goodwill, b) consumers perceive the Abercrombie trade dress as being unique to Abercrombie, and c) American’s consumers are actually confused as to whether there is an association between the two companies. See Appellant’s Br. at 41. Abercrombie correctly argues that such evidence would have raised a genuine issue of material fact as to whether Abercrombie had protectable trade dress, but it fails to realize that such evidence would have done so by demonstrating the existence of distinctiveness acquired through attachment of secondary meaning. Since the record already contained extensive uncontested evidence of secondary meaning, such discovery prior to the district court’s resolution of American’s motion would have been unnecessarily duplicative. Abercrombie needed no further discovery to oppose American’s motion, and the motion was ripe for resolution at the time the district court considered it. Because this opinion resolves the case in certain ways not expressly addressed by the district court, we note that none of the facts A & F wished to discover goes to the question of functionality, and, as discussed infra pages 37-44, the fact of actual consumer confusion here would not create a genuine issue of material fact on the question of confusing similarity of the parties’ catalogs because we presently resolve a legal question and hold them not confusingly similar as a matter of law.

Ill

A

This court reviews a district court’s grant of summary judgment de novo. See Daddy’s Junky Music Stores, Inc. v. Big Daddy’s Family Music Ctr., 109 F.3d 275, 279-80 (6th Cir.1997). Summary judg *629 ment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The court will view the facts, and all inferences to be drawn from them, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Carp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-moving party, in answering a properly supported motion for summary judgment, must show a genuine issue necessitating trial. See Fox v. Van Oosterum, 176 F.3d 342, 347 (6th Cir.1999). Such an issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505. Because this court’s de novo review involves only application of legal propositions to the undisputed facts in the record, we may affirm on any grounds supported by the record even if different from the reasons of the district court. See Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000) (en banc) (citing Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir.1997)); City Management Corp. v. United States Chem. Co., 43 F.3d 244, 251 (6th Cir.1994); Russ’ Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir.1985). See also WSM, Inc. v. Tennessee Sales Co., 709 F.2d 1084, 1086 (6th Cir.1983) (holding that the likelihood of trademark confusion can be a question of law appropriate for determination on a motion for summary judgment).

B

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), protects from infringement the unregistered “trade dress” of a product. As explained more fully below, to recover for trade dress infringement under § 43(a), a party must prove by a preponderance of the evidence: 1) that the trade dress in question is distinctive in the marketplace, thereby indicating the source of the good it dresses, 2) that the trade dress is primarily nonfunctional, and 3) that the trade dress of the competing good is confusingly similar. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 210, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000); see also Ferrari S.P.A. Esercizio Fabriche Automobili E Corse v. Roberts, 944 F.2d 1235, 1239 (6th Cir.1991). The first two elements are the requirements for protectability, and the third element is the standard for evaluating infringement. As an initial matter, this case calls upon us to resolve a conceptually precedent question: What type of “thing” can, if it satisfies the two protecta-bility criteria, qualify as trade dress? In the words of the district court, is what A & F described in its complaint “ ‘trade dress’ at all”?

“ ‘Trade dress’ refers to ‘the image and overall appearance of a product.’ It embodies ‘that arrangement of identifying characteristics or decorations connected with a product, whether by packaging or otherwise, [that] make[s] the source of the product distinguishable from another and ... promotefs] its sale.’ ” Ferrari, 944 F.2d at 1238-39 (quoting Allied Mktg. Group, Inc. v. CDL Mktg., Inc., 878 F.2d 806, 812 (5th Cir.1989), and Mr. Gasket Co. v. Travis, 35 Ohio App.2d 65, 299 N.E.2d 906, 912 n. 13 (Ohio Ct.App.1978)). Trade dress “ ‘involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.’ ” Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n. 1, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (quoting John H. Harland Co. v. Clarke Checks, *630 Inc., 711 F.2d 966, 980 (11th Cir.1983) (citing Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 831 (11th Cir.1982) (“adoption procedures used by [plaintiff] in the sale of its dolls qualify as protectable trade dress”), and SK & F Co. v. Premo Pharm. Labs., Inc., 481 F.Supp. 1184, 1187 (D.N.J.1979) (stating that “[t]rade dress is a complex composite of features” including, inter alia, size, col- or, texture, and graphics, which must “be considered together, not separately”), aff'd, 625 F.2d 1055 (3d Cir.1980))).

As the Second Circuit observed, recently “ ‘trade dress’ has taken on a more expansive meaning and includes the design and appearance of the product as well as that of the container and all elements making up the total visual image by which the product is presented to customers.” Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 31 (2d Cir.1995). Ferrari similarly endorsed a very broad concept of trade dress, one that went beyond the products’ packages and designs. 4 See Ferrari, 944 F.2d at 1238-39. According to McCarthy On Trademarks § 8:4, trade dress has been held to include such things as: the cover of a book, a magazine cover design, the use of a lighthouse as part of the design of a golf hole, the “G” shape of a Gucci watch, a combination of features of a folding table, a fish-shaped cracker, the “Marlboro Man” western cowboy motif, and, most notably for our purposes, the layout and appearance of a mail-order catalog, see Tools USA & Equip. Co. v. Champ Frame Straightening Equip., 87 F.3d 654 (4th Cir.1996). Because we can conceive of no “thing” inherently incapable of carrying meaning, any “thing” can come to distinguish goods in commerce and thus constitute a mark within the meaning of the Lanham Act. See Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 162, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995). 5 In short: any “thing” that dresses a good can constitute trade dress. 6 Protectability is another matter entirely.

Still, the notion that any “thing” that dresses a good can constitute trade dress cannot be divorced from the underlying concept of trade dress law: protection of effable markers used to identify the source of a good in commerce. Although producers and marketers of goods can adopt and seek to protect a seemingly infinite variety of product packages and product configurations, the recognition that trade dress can comprise “any thing,” “ ‘even particular sales techniques,’ ” Two Pesos, Inc., 505 U.S. at 764 n. 1, 112 S.Ct. 2753 (quoting John H. Harland Co., 711 F.2d at 980), should not be taken to mean that a company can protect a product’s marketing theme or any other incorporeal aspects of the good incapable of being perceived by the senses. The aura about a product, the cachet that ownership or display of it creates, and the kind of appeal it has to certain consumers *631 do not dress a good in trade. Rather, those intangible “things” emanate from the good, its dress, and the marketing campaign that promotes the dressed good. Trade dress is tangible or otherwise objectively observable by the senses; its constitution is a matter of subjective interpretation. Lest we lose sight of the body of law here in question, that of trade dress, we are reminded that certain “things” held out as “dress” are not dress at all. Hans Christian Andersen, The Emperor’s New Clothes (Naomi Lewis, trams., Candlewick Press, 1997) (1837). With this in mind, we turn to American’s argument and the district court’s holding that Abercrombie seeks to protect its marketing theme.

American, like the district court, draws a contrast between trade dress and a “marketing approach.” See generally Haagen-Dazs v. Frusen Gladje, Ltd., 493 F.Supp. 73, 75 (S.D.N.Y.1980). Haagen-Dazs and the Eighth Circuit’s Prufrock are the leading cases distinguishing between protectable trade dress and a “mere method or style of doing business.” Prufrock Ltd. v. Lasater, 781 F.2d 129, 131-32 (8th Cir.1986), abrogated in part by Two Pesos, 505 U.S. at 765, 112 S.Ct. 2753. In Prufrock, the district court had defined the plaintiffs trade dress as “a full service restaurant, serving down home country cooking, in a relaxed and informal atmosphere, with a full-service bar, and which employs all or any of [eight specifically described] items.” Id. at 131. The Eighth Circuit held that inclusion of the “‘core concept’ of Prufrock’s restaurant” in an injunction defined its trade dress too broadly because “[t]he concept of informal country dining is merely the method Pru-frock has chosen to market its restaurant services.” Id. at 131-32. Regardless of whether the specifically described elements were entitled to trade dress protection through inherent or acquired distinctiveness, the restaurant’s overall theme, informal country dining, could not acquire such protection. 7

Similarly, the Haagerir-Dazs court concluded that, despite the plaintiffs’ identification of five common features on two ice cream packages, “the containers in issue, as well as their dress, [were] clearly distinguishable and would appear so to all but the most obtuse consumer.” Haagerir-Dazs, Inc., 493 F.Supp. at 75. With no likelihood of actual confusion, the plaintiff could not prevail on an elemental or “overall appearance” trade dress claim, so it tried to convert evidence that Frusen Gladje had copied certain unprotectable trade dress into a much broader claim that Haagen Dazs had a right to exclusive use of its Scandinavian concept. The court concluded that the plaintiff failed “to appreciate the difference between an attempt to trade off the goodwill of another and the legitimate imitation of an admittedly effective marketing technique. In fact, plaintiff attempted] to significantly broaden its protected ‘trademark’ to include its so-called ‘unique Scandinavian marketing theme.’ ” Ibid. Because a marketing theme cannot constitute trade dress, the court refused to enjoin Frusen Gladje from trading on Nordic imagery.

*632 Abercrombie describes its trade dress as creating a variety of different images: “an active line of casual clothing,” “a rugged line of casual clothing,” “an athletic line of casual clothing,” and “a cutting edge ‘cool’ Abercrombie image.” But Abercrombie does not claim a monopoly on a cutting edge “cool” image. Instead, Abercrombie seeks protection of the design features that it claims have combined to become distinctive of its goods in commerce. For example, in describing one element included as part of its overall trade dress, Aber-crombie lists “use of the word outdoor on labels and advertising and promotional material to convey the image of a rugged outdoor line of casual clothing.” Compl. ¶ 7(d). Fairly understood, Abercrombie does not seek to forbid American from marketing clothes that convey the image of a rugged outdoor line of casual clothing, but instead seeks to prevent American from doing so by using the word outdoor in combination with other aspects of Aber-crombie’s trade dress that have supposedly come to signify Abercrombie as the source of the goods.

Abercrombie’s complaint is a bit perplexing: it describes its “trade dress” as comprising all nine of the features identified supra pages 625-626. If its trade dress really comprises all nine elements acting in concert to create its overall look, an injunction to prohibit marketing a line of clothing bearing a confusingly similar overall look would probably do the company little good, as American could easily drop a few items from its line, e.g., stop using the word performance, and thereby begin marketing a dissimilar line of products. Conversely, under such a broad theory of the case, Abercrombie’s introduction of a new design, e.g., using fencing foils on t-shirts, would alter the form of its trade dress and potentially permit infringement of the newly conceived trade dress in the absence of an expanded injunction. Also, Abercrombie’s description of its trade dress seems at times internally inconsistent: query whether clothing can at once convey an “active,” a “rugged,” an “athletic,” and a “cool” image. Moreover, some of Abercrombie’s descriptions are rather broad: consider “use of all natural cotton, wool, and twill fabrics to create a consistent texture palette.” Compl. ¶ 7(g). And its inclusion of the catalog and the sales associate teams as trade dress of its clothing stretches the boundaries of trade dress law.

Reading the complaint in its most reasonable form, 8 this case involves garments made of certain fabrics containing certain design motifs drawn from certain color palettes and displaying certain registered trademarks and other design elements in a certain way. In addition, the Quarterly is an item containing a specific method of presenting products in conjunction with an identifiable photographic motif and editorial content addressing a lifestyle consistent with — perhaps spawning a lifestyle emulative of — the image Abercrombie intentionally associates with its clothing. 9 We regard the configuration *633 of the catalog as trade dress because the Quarterly is a freestanding product that has its own trade dress, an objectively observable “particular sales technique” used to sell clothing, or packaging of the products it depicts. 10 Abercrombie’s use of certain in-store displays and a sales associate team comprised mainly of college students also constitute a “particular sales technique.”

Thus, in remarking that Abercrombie sought protection only of its marketing theme, the district court misconstrued the nature of this suit. Abercrombie sought protection of its trade dress, which in-eludes features of — and, in the case of the Quarterly, also comprises a major part of — Abercrombie’s marketing campaign. Yet A & F’s claimed trade dress transcends those aspects of its trade dress directly associated with its campaign to attract young, fit, active consumers. As we read the complaint, the trade dress A & F seeks to protect is: 1) the designs of the goods themselves, 2) the design of the catalog created to sell its products by, among other things, cultivating an image it wants consumers to associate with its products, and 3) features of its in-store presentation associated with the sale of its products. 11

*634 This court’s willingness to read a complaint fairly should not be taken as an invitation to shotgun litigation, especially when a producer claims that a combination of elements comprises its trade dress. As McCarthy commented, “[w]hatever may be claimed as the combination of elements making up the product or its packaging and presentation, ... it will not do to solely identify in litigation a combination as 'the trade dress.’ Rather, the discrete elements which make up that combination should be separated out and identified in a list.” MCCARTHY On TRADEMARKS § 8:3. As the Second Circuit observed,

focus 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. Without such a precise expression of the character and scope of the claimed trade dress, litigation will be difficult, as courts will be unable to evaluate how unique and unexpected the design elements are in the relevant market. Courts will also be unable to shape narrowly-tailored relief if they do not know what distinctive combination of ingredients deserves protection. Moreover, a plaintiffs inability to explain to a court exactly which aspects of its product design(s) merit protection may indicate that its claim is pitched at an improper level of generality, i.e., the claimant *635 seeks protection for an unprotectable style, theme or idea.

Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 381 (2d Cir.1997).

The Landscape Forms court reversed issuance of a preliminary injunction because “Landscape ha[d] not articulated and supported its claimed [inherently distinctive] trade dress with sufficient particularity.” Landscape Forms, 113 F.3d at 381. While the language of Abercrombie’s complaint rides the cusp of sufficient particularity, with its occasional overbreadth leaving some claims devoid of meaning, A & F attached to its complaint photographic depictions of designs it claimed constituted its trade dress and the record now contains volumes of photographic exhibits depicting its garment designs and the design of its Quarterly. A complaint is neither an injunction nor a judgment; it merely puts the defendant on notice of the plaintiffs claims. At the time of American’s summary judgment motion, Abercrombie had not yet sought to enjoin American from using any designs. Had the case proceeded further, Abercrombie would have been expected to list the elements of the designs and the unique combinations it sought to protect, which enumeration would have enabled the district court to craft a sufficiently specific injunction had such proved warranted. See Samara Bros., 165 F.3d at 126 & n. 2 (distinguishing Landscape Forms by recognizing the complaint’s insufficient description of the distinctive aspects of the garment designs but refusing to “look at the complaint in a vacuum,” and finding “that the evidence adduced at trial sufficiently depict[ed] the ‘distinctive combination of ingredients’ in Samara’s trade dress”), rev’d on other grounds, 529 U.S. 205, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000).

The district court erred in treating Abercrombie’s suit as an attempt to protect a “marketing theme.” A & F seeks protection of its designs, and it can do so even if the designs 'are consistent with, contain aspects of, form a part of, or convey to consumers the same message as, its marketing campaign. In sum, the three “things” Abercrombie seeks to protect constitute trade dress.

C

The first step in qualifying trade dress for protection under § 43(a) is proving distinctiveness. “[C]ourts have universally imposed th[is] requirement, since without distinctiveness the trade dress would not ‘cause confusion ... as to the origin, sponsorship, or approval of [the] goods,’ as [section 43(a)] requires.” Samara Bros., 529 U.S. at 210,