IP Law Daily, TRADEMARK—D. Nev.: NYC tour provider likely to succeed on claims that Nevada company infringed ‘Tea Around Town’ mark and tour bus trade dress, (Jun 6, 2025)

By Carolin Dennis, B.Sc., LL.B., LL.M.

The plaintiffs established by a preponderance of Sleekcraft factors that there was a likelihood of confusion between “Tea Around Town” and “Tea on the Strip.”

The federal district court in Las Vegas, Nevada granted a preliminary injunction to a New York company and its exclusive licensee using the mark “Tea Around Town” to prevent a Nevada company from using the phrase “Tea on the Strip” and from using the exterior and interior bus design. Based on evidence presented to the district court in the record and at the hearing, the plaintiffs established a likelihood of success on the merits of their trademark and trade dress infringement claims (Go New York Tours, Inc. v. Tea On The Strip, LLC, No. 2:25-cv-00279-RFB-EJY (D. Nev. June 4, 2025)).

Background. The “Tea Around Town” Mark is registered and owned by Kost, Inc., and has been in continuous use by its exclusive licensee, Go New York Tours, Inc., since July 11, 2023. Kost, Inc. and Go New York Tours, Inc. (plaintiffs) operate “Tea Around Town,” an upscale tea experience abroad a luxury double-decker bus, offering a unique and immersive customer experience. The Tea Around Town trade dress includes distinctive branding, including interior and exterior design of their double decker bus where they serve tea to customers. The design of the plaintiffs’ bus features a predominantly pink color scheme with white and gold, incorporating florals, greenery, and illustrations of people partaking in high tea. The interior of the bus incorporates the pink, gold, and white color scheme including booths and table settings utilizing the same shade of pink, gold accents throughout.

On October 13, 2024, Dustin Drai formed “Tea on the Strip, LLC,” in the State of Nevada and launched the business using the Tea on the Strip mark in or around February 2025. Tea on the Strip, LLC advertised their “Las Vegas Strip Bus Tour & Tea Experience” in social media posts on profiles under the name Tea on the Strip, displaying their own double decker tea bus which utilized a color scheme of predominantly pink—and a similar shade to Tea on the Town’s pink—white and gold, and other features that were confusingly similar to Tea on the Town’s bus design. In comments on Tea on the Strip’s posts featuring both the exterior and interior design of the bus, multiple people posted comments indicating they believed Tea on the Strip was affiliated with Tea on the Town.

On February 11, 2025, the plaintiffs filed their complaint for trademark infringement; trade dress infringement/false advertising; common law unfair competition; and deceptive trade practices. The same day the plaintiffs contacted the defendants with a demand letter and a copy of the complaint they filed that day. The parties and their counsel engaged in settlement negotiations, and the defendants agreed to cease operating their business until the instant dispute was resolved and also agreed to change their name to “Café on the Strip.” However, on February 26, 2025, the plaintiffs filed emergency Motions for a Temporary Restraining Order and Preliminary Injunction.

Trademark infringement. To prevail on a trademark infringement under the Lanham Act, a party must prove: (1) that it has a protectible ownership interest in the mark; and (2) that the defendant's use of the mark is likely to cause consumer confusion. The district court found that the fact that the plaintiffs are the registered owner of the “Tea Around Town” Mark is undisputed. The Ninth Circuit has developed a flexible, non-exhaustive eight-factor test to guide the analysis of the likelihood of consumer confusion (Sleekcraft factors). Based upon the analysis of the Sleekcraft factors, the district court found that the plaintiffs have demonstrated a likelihood of confusion, and therefore found that the plaintiffs have demonstrated a likelihood of success as to its trademark infringement claim.

The district court found that the “Tea on the Town” to be a strong mark. However, the district court found that the differences were outweighed by the similarities of the marks and the second factor weighed in favor of the plaintiffs. The district court noted that the defendants’ and the plaintiffs’ products were closely related as both provided experiential tours around a city serving high tea in a bus. The district court also noted the importance of social media marketing to both the parties and found that they used converging marketing channels through social media. This factor therefore supported a finding of likelihood of confusion. The defendant’s intent factor supported a finding of confusion as the defendants’ chose Tea on the Strip’s trademark and trade dress with the intent of deceiving customers. Further, evidence of actual confusion and likelihood of expansion weighed heavily in favor of a likelihood of consumer confusion. The plaintiffs presented evidence of actual confusion with people commenting on social media that they believe Tea on the Strip is related to the plaintiffs’ company. Additionally, the plaintiffs have incorporated in Las Vegas. They have already expanded to six other cities and are investing significant resources expanding into other cities both nationally and internationally. Lastly, while that amount of tea bus tour may be relatively costly, this is not a product marketed to expert buyers, and it is a relatively new concept marketed to unsophisticated consumers who are unlikely to have extensive experience with the product. Therefore, the district court found that this factor tipped slightly in favor of the plaintiffs.

Trade dress infringement. To sustain a claim for trade dress infringement, the plaintiffs must prove: (1) that its claimed dress is nonfunctional; (2) that its claimed dress serves a source-identifying role either because it is inherently distinctive or has acquired secondary meaning; and (3) that the defendant’s product or service creates a likelihood of consumer confusion.

The district court found the plaintiffs’ claimed trade dress is non-functional because the defendants have not established that they would be placed at a significant non-reputation-related competitive disadvantage if they were denied the right to use the plaintiffs’ particular shade of pink combined with white and gold, or any of the other interior and exterior bus designs the defendants presented to the court.

The district court found the plaintiffs’ the Tea on the Town trade dress suggestive. The plaintiffs’ unique aesthetic bus design has created a recognizable trade dress specifically related to its product of serving high tea on a bus. The consistent and repeated use of the predominant pink with white and gold, emphasizing florals and other specific decorative elements as described above in a specific manner is distinctive. Additionally, because there is no natural connection between the use of such aesthetic elements and the functionality of serving tea on a bus, the district court found the plaintiffs will likely succeed in establishing their trade dress is inherently distinctive. Also, the fact that the plaintiffs have used the design elements described herein on its buses and promotional materials for a substantial period of time suggests a strong connection between the design and their company and product. Accordingly, the district court found that the plaintiffs are alternatively likely to prevail on the issue of secondary meaning.

Likelihood of confusion in the trade dress context is evaluated by reference to the same factors used in the ordinary trademark context. The district court has already found that the Sleekcraft factors weigh in favor of the plaintiffs. Therefore, the plaintiffs have established by a preponderance of the evidence that it will be able to prove a likelihood of consumer confusion at trial.

Irreparable injury. The district court found the defendants continued to use “Tea on the Strip” in their website source code. Further, the defendants had indicated to the district court their intent to operate with the brand and bus designs they most recently proposed to the plaintiffs, which are likely infringing. Therefore, the defendants have not rebutted the presumption of irreparable harm. Further, the district court found that the evidence of actual confusion the plaintiffs presented, coupled with the evidence presented that the defendants’ product is inferior to theirs, is sufficient to show irreparable harm in the form of loss of control over business reputation and damage to goodwill. Therefore, the plaintiffs established their entitlement to injunctive relief.

Balance of the equities and public interest. The district court noted that the plaintiffs’ interest in preventing further infringement of their trademark and trade dress outweighs the defendants’ interest in continued use of the designs and branding which are likely infringing. Further, the district court noted that trademarks protect the public from confusion by accurately indicating the source of a product. Thus, preventing consumer confusion serves the public interest.

The district court, therefore, granted the plaintiffs motion for a preliminary injunction in part but denied the motion for a temporary restraining order. The district court enjoined the defendants’ from using the phrase “Tea on the Strip” and are ordered not to use that phrase as a keyword on their current website and to deactivate any social media tags using the phrase “Tea on the Strip” that redirect a user to their current social media profiles; and from using the exterior and interior bus design as it was presented to the district court in the record and at the hearing.

The Case is No. 2:25-cv-00279-RFB-EJY.

Judge: Boulware, R.

Attorneys: George Pikus (Barton LLP) for Go New York Tours, Inc. Timothy Getzoff (Holland & Hart LLP) for Tea on the Strip, LLC.

Companies: Kost, Inc.; Go New York Tours, Inc.; Tea Around Town Las Vegas, Inc.; Tea on the Strip, LLC

Cases: Trademark NevadaNews