18-1027-cv
Int’l Leisure Prods., Inc. v. Sunnylife Austl., et al.


                                       UNITED STATES COURT OF APPEALS
                                          FOR THE SECOND CIRCUIT


                                                SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 17th day of December, two thousand eighteen.

PRESENT:               JOSÉ A. CABRANES,
                       ROSEMARY S. POOLER,
                       CHRISTOPHER F. DRONEY,
                                    Circuit Judges.



INTERNATIONAL LEISURE PRODUCTS, INC.,

                                  Plaintiff-Appellant,            18-1027-cv

                                  v.

SUNNYLIFE AUSTRALIA, SUNNYLIFE USA,
BLOOMINGDALES, INC.,

                                  Defendants-Appellees,

BLOOMINGDALE’S,

                                  Defendant.


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FOR PLAINTIFF-APPELLANT:                                    BRIAN L. WAMSLEY, Ware, Fressola,
                                                            Maguire & Barber LLP, Monroe, CT.

FOR DEFENDANTS-APPELLEES:                                   CHESTER ROTHSTEIN (Marc J. Jason, on
                                                            the brief), Amster, Rothstein & Ebenstein
                                                            LLP, New York, NY.

       Appeal from a March 12, 2018 judgment of the United States District Court for the
Southern District of New York (Nelson R. Román, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.

        Plaintiff-Appellant International Leisure Products (“ILP”) appeals from a judgment of the
District Court dismissing under Federal Rule of Civil Procedure 12(b)(6) its claims for, inter alia,
trade dress infringement and unjust enrichment. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

        This Court recently held that ILP’s claimed trade dress is “impermissibly overbroad” and not
protectable. See Int’l Leisure Prods., Inc. v. Funboy LLC, No. 17-3982-cv, 2018 WL 4224335, at *3 (2d
Cir. Sept. 6, 2018) (analyzing an identical trade dress). In a letter submitted pursuant to Rule 28(j) of
the Federal Rules of Appellate Procedure and dated September 26, 2018, the parties requested that
this Court “stay” the present appeal pending final resolution of Funboy. The mandate in Funboy
having issued on October 17, 2018, we affirm the District Court’s dismissal of ILP’s Second
Amended Complaint (“SAC”) with prejudice. We further find no “abuse of discretion” in dismissing
with prejudice the SAC where: (1) ILP amended its pleading once as of right before effectuating
service and a second time after receiving notice of the anticipated motion to dismiss; (2) ILP did not
seek leave from the District Court to file a third amended complaint; and (3) where ILP’s proposed
amendment would not cure its pleading deficiencies. See TechnoMarine S.A. v. Giftports, Inc., 758 F.3d
493, 505 (2d Cir. 2014) (applying “abuse of discretion” review to a district court’s denial of leave to
amend).

                                           CONCLUSION

       We have reviewed all of the arguments raised by Plaintiff-Appellant on appeal and find them
to be without merit. The March 12, 2018 judgment of the District Court is AFFIRMED.

                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk



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