IP Law Daily, TRADEMARK—S.D.N.Y.: Trademark infringement, dilution, and unfair competition claims survive dismissal in ‘Folkes‘ trademark dispute, (Feb 9, 2026)

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

The district court found that claims for trademark infringement and unfair competition under Section 43(a) of the Lanham Act and New York common law, and trademark dilution, were sufficiently pled.

The U.S. District Court for the Southern District of New York denied the defendants’ motion to dismiss as to the plaintiff’s Lanham Act claim, New York common law unfair competition claim, and trademark dilution claim because the complaint plausibly alleged these claims. However, the district court granted the motion dismiss the plaintiff’s unjust enrichment claim because it was wholly duplicative of its trademark infringement and unfair competition claims (Folkes Home Services Heating, Cooling, Plumbing & Electrical, LLC v. Folkes Brothers Home Services LLC , No. 7:24-cv-09844-NSR (S.D.N.Y. Feb. 5, 2026)).

Folkes Home Services Heating, Cooling, Plumbing & Electrical, LLC (plaintiff) provides residential and commercial plumbing, heating, ventilation, air conditioning, boiler, and water heater installation and maintenance services to customers throughout the Hudson Valley region. In November 2024, the plaintiff acquired Folkes Home Services, Inc., a New York corporation founded in 1998, pursuant to an Asset Purchase Agreement through which the plaintiff obtained the entirety of that business, including its operations, assets, and goodwill. The plaintiff owned the trademarks FOLKES HOME SERVICES and FOLKES (collectively, the Plaintiff’s Marks), including associated logos, which are used in connection with the plaintiff’s HVAC and plumbing services. The plaintiff, including through its predecessor-in-interest, has continuously used the Plaintiff’s Marks in interstate commerce since at least 1999.

Dustin Folkes and Tyler Folkes subsequently formed a competing business, Folkes Brothers Home Services LLC, and adopted the marks FOLKES BROTHERS HOME SERVICES and FOLKES BROTHERS (Infringing Marks) to allegedly offer services identical or nearly identical to the plaintiff’s services. The plaintiff alleged that the Infringing Marks are identical or confusingly similar in appearance, sound, meaning, and overall commercial impression, and that the defendants offer identical or closely related services in overlapping geographic markets. Further, the defendants market those services through overlapping channels of trade, including websites and social media, and their use of the Infringing Marks trades on the plaintiff’s goodwill and has caused, and is likely to continue to cause, consumer confusion as to source, sponsorship, or affiliation.

The plaintiff bought an action against Folkes Brothers Home Services LLC, Dustin Folkes, Jr., and Tyler Folkes (collectively, defendants) asserting claims for: (1) trademark infringement and unfair competition under Section 43(a) of the Lanham Act; (2) dilution under New York General Business Law § 360-l; (3) trademark infringement and unfair competition under New York common law; (4) use of a name with intent to deceive under New York General Business Law § 133; and (5) unjust enrichment under New York common law. The defendants moved to dismiss the plaintiff’s complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on grounds that likelihood of confusion is implausible as a matter of law and to strike certain allegations pursuant to Rule 12(f).

Trademark infringement and unfair competition. The plaintiff alleged that the marks have been used continuously and substantially exclusively for more than two decades in the same line of business and geographic market; they have been promoted extensively through advertising, branded vehicles, uniforms, signage, and digital media; and they are alleged to enjoy widespread consumer recognition, including industry awards and thousands of favorable customer reviews. The district court noted that these allegations plausibly support that, in the minds of consumers, “FOLKES” no longer denotes a surname alone, but instead identifies a particular source of HVAC and plumbing services. The district court noted that the plaintiff plausibly alleged that the FOLKES and FOLKES HOME SERVICES marks are capable of protection under the Lanham Act and New York common law. However, as the Plaintiff’s Marks are not inherently distinctive, the plaintiff must successfully plead secondary meaning.

The plaintiff alleged circumstances consistent with the appropriation of goodwill—namely, that the defendants adopted highly similar marks after years of exposure to the plaintiff’s branding and customer base. Specifically, the defendants formed Folkes Brothers Home Services LLC on June 12, 2024, chose that name to trade on the plaintiff’s reputation, and offer services in the same areas, including Dutchess, Orange, Putnam, and Ulster Counties. They also promote their services through a Facebook page describing the business as a “rebrand”. These allegations support a reasonable inference of secondary meaning, showing that the defendants targeted the plaintiff’s established commercial identity. Accordingly, the plaintiff’s allegations squarely implicate the core secondary-meaning factors—longstanding and exclusive use, extensive advertising and marketplace exposure, substantial sales success, public recognition, and indicia of goodwill appropriation, each of which weighs in favor of secondary meaning at the pleading stage.

The district court also found that the plaintiff adequately pleaded a likelihood of confusion between its Marks and the defendants’ Infringing Marks. Accordingly, the plaintiff adequately stated claims for trademark infringement and unfair competition under Section 43(a) of the Lanham Act and New York common law. Because New York common law trademark infringement and unfair competition claims mirror those under the Lanham Act, and because the complaint plausibly alleged bad faith for the reasons set forth in the Court’s federal trademark analysis, the plaintiff also stated claims under New York common law.

Trademark dilution. The district court noted that the plaintiff’s complaint alleged facts sufficient to support a reasonable inference that the defendants’ use of the challenged marks risks diminishing the distinctiveness and identifying power of the plaintiff’s Marks. Accordingly, the plaintiff’s dilution claim under § 360-l survived dismissal.

Use of a name with intent to deceive. The district court found that the plaintiff’s complaint contained no facts supporting an inference that the defendants intended to mislead the public as to their true identity. To the contrary, it is undisputed that “Folkes” is the defendants’ surname, which defeats any claim that the name was adopted to conceal who they are. Therefore, the plaintiff’s complaint did not plausibly allege deceptive use of the plaintiff’s corporate or trade name within the meaning of § 133.

Unjust enrichment. The district court found that the plaintiff’s complaint did not allege any enrichment independent of the asserted trademark violations, nor did it plead a quasi-contractual or equitable relationship distinct from the alleged tortious conduct. The plaintiff failed to allege how its unjust enrichment claim was not merely duplicative of the other causes of action, dismissal is required as a matter of law. Thus, the defendants’ motion to dismiss this claim was granted.

Motion to strike. The defendants moved to strike paragraphs 42, 43, 44, 50, 54, and 55 of the plaintiff’s complaint. The district court found that paragraphs 42, 43, 44, 50, 54, and 55 are relevant to the plaintiff’s claims and the defendants have not shown prejudice sufficient to justify striking them. The defendants’ motion to strike was denied.

Accordingly, the defendants’ motion to dismiss the plaintiff’s complaint was granted in part and denied in part.

The Case is No. 7:24-cv-09844-NSR.

Judge: Roman, N.

Attorneys: John Nading Buchanan (Buchanan Ingersoll & Rooney PC) for Folkes Home Services Heating, Cooling, Plumbing & Electrical, LLC. Nancy Ann Del Pizzo (Rivkin Radler, LLP) for Folkes Brothers Home Services LLC, Dustin Folkes, Jr. and Tyler Folkes.

Companies: Folkes Home Services Heating, Cooling, Plumbing & Electrical, LLC; Folkes Brothers Home Services LLC

Cases: Trademark NewYorkNews