MANSFIELD, Circuit Judge:

Carol Barnhart Inc. (“Barnhart”), which sells display forms to department stores, distributors, and small retail stores, appeals from a judgment of the Eastern District. of New York, Leonard D. Wexler, Judge, granting a motion for summary judgment made by defendant Economy Cover Corporation (“Economy”), which sells a wide variety of display products primarily to jobbers and distributors. Barnhart’s complaint alleges that Economy has infringed its copyright and engaged in unfair competition by offering for sale display forms copied from four original “sculptural forms” to which Barnhart holds the copyright. Judge Wexler granted Economy’s motion for summary judgment on the ground that plaintiff’s mannequins of partial human torsos used to display articles of clothing are utilitarian articles not containing separable works of art, and thus are not copyrightable. We affirm.

The bones of contention are four human torso forms designed by Barnhart, each of which is life-size, without neck, arms, or a back, and made of expandable white styrene. Plaintiff’s president created the forms in 1982 by using clay, buttons, and fabric to develop an initial mold, which she then used to build an aluminum mold into which the poly-styrene is poured to manufacture the sculptural display form. There are two male and two female upper torsos. One each of the male and female torsos is unclad for the purpose of displaying shirts and sweaters, while the other two are sculpted with shirts for displaying sweaters and'jackets. All the forms, which are otherwise life-like and anatomically accurate, have hollow backs designed to hold excess fabric when the garment is fitted onto the form. Barnhart’s advertising stresses the forms’ uses to display items such as sweaters, blouses, and dress shirts, and states that they come “[pjackaged in UPS-size boxes for easy shipping and [are] sold in multiples of twelve.”

*413Plaintiff created the first of the forms, Men’s Shirt, shortly after its founding in March, 1982, and by the end of July it had attracted $18,000 worth of orders. By December 1982, plaintiff had designed all four forms, and during the first morning of the twice-yearly trade show sponsored by the National Association of the Display Industry (“NADI”), customers had placed $35,-000 in orders for the forms. Plaintiff’s president maintains that the favorable response from visual merchandisers, Barn-hart’s primary customers, “convinced me that my forms were being purchased not only for their function but for their artistically sculptured features.”

Economy, which sells its wide range of products primarily to jobbers, distributors, and national chain stores, not to retail stores, first learned in early 1983 that Barnhart was selling its display forms directly to retailers. After observing that no copyright notice appeared either on Barn-hart’s forms or in its promotional literature, Economy contracted to have produced for it four forms which it has conceded, for purposes of its summary judgment motion, were “copied from Barnhart’s display forms” and are “substantially similar to Barnhart’s display forms.” Economy began marketing its product, “Easy Pin Shell Forms,” in September 1983. Later in the same month, Barnhart wrote to NADI to complain that Economy was selling exact duplicates of Barnhart’s sculptural forms at a lower price and asked it to stop the duplication and underselling. Economy responded with a letter from its counsel dated October 17, 1983 to the Chairman of NADI’s Ethics Committee stating that Economy was not guilty of any “underhanded” business practices since Barn-hart’s forms were not protected by “patent, copyright, trademark, or otherwise.”

On the same date (October 17, 1983) Barnhart applied for copyright registration for a number of products, including the four forms at issue here. It identified each of the forms as “sculpture” and sought expedited examination of its applications because of the possibility of litigation over copyright infringement. Copyright registration was granted the same day. Then, on October 18, Barnhart informed Economy that its Easy Pin Shell Forms violated Barnhart’s rights and demanded that it discontinue its advertising and sale of the forms. In November 1983, more than 18 months after selling its first form, Barn-hart advised its customers that copyright notice had “inadvertently [been] omitted” from the display forms previously distributed and enclosed adhesive stickers bearing a copyright notice, which it asked the customers to affix to unmarked products in inventory.

Barnhart filed this suit in December 1983. Count I charges Economy with violating Barnhart’s rights under, the Copyright Act, 17 U.S.C. §§ 101-810 (1982), by copying and selling Barnhart’s four display forms. Count II alleges that Economy has engaged in unfair competition under the common law of the State of New York. The complaint seeks an adjudication that Economy has infringed Barnhart’s copyrights, a preliminary and permanent injunction against Economy’s producing, advertising, or selling its forms, damages (consequential, statutory, and punitive), and attorney’s fees. Economy moved for summary judgment on the issue of the copyright-ability of Barnhart’s display forms (and the issue of statutory damages and attorney’s fees).

After a hearing on February 3, 1984, Judge Wexler issued an order and opinion on September 12, 1984 granting defendant’s motion for summary judgment on the issue of copyrightability. 594 F.Supp. 364 (E.D.N.Y.1984). The district court rejected plaintiff’s arguments that the issue of copyrightability was an improper subject for summary judgment and that the Copyright Office’s issuance of certificates of registration for Barnhart’s four forms created an insurmountable presumption of the validity of the copyrights. On the central issue of copyrightability, it reviewed the statutory language, legislative history, and recent case authority, concluding that they all speak with “a single voice,” i.e., that a useful article may be copyrighted only to *414the extent that “there is a physically or conceptually separable work of art embellishing it....” Id. at 370. Applying this test, the district court determined that since the Barnhart forms possessed no aesthetic features that could exist, either physically or conceptually, separate from the forms as utilitarian articles, they were not copyrightable.

On March 6, 1985, 603 F.Supp. 432, Judge Wexler denied Barnhart’s motion for reargument. The present appeal followed.

Discussion

Appellant’s threshold argument, that the district court erred in ignoring the statutory presumption of validity accorded to a certificate of copyright registration and to the line-drawing expertise of the Copyright Office, can be disposed of briefly. With respect to the prima facie validity of Copyright Office determinations, 17 U.S.C. § 410(c) states:

“In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.”

However, “a certificate of registration creates no irrebuttable presumption of copyright validity.” Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 908 (2d Cir.1980). Extending a presumption of validity to a certificate of copyright registration

“merely orders the burdens of proof. The plaintiff should not ordinarily be forced in the first instance to prove all of the multitude of facts that underline the validity of the copyright unless the defendant, by effectively challenging them, shifts the burden of doing so to the plaintiff.”

H.Rep. No. 1476, 94th Cong., 2d Sess. 157, reprinted in 1976 U.S.Code Cong. & Ad. News 5659, 5773. See also Oboler v. Gol-din, 714 F.2d 211, 212 (2d Cir.1983); 3 M. Nimmer, Nimmer on Copyright § 12.11[B], at 12-79 to 12-80 (1985).

Judge Wexler properly exercised the discretion conferred on him by 17 U.S.C. § 410(c). Once defendant’s response to plaintiff’s claim put in issue whether the four Barnhart forms were copyrightable, he correctly reasoned that the “mute testimony” of the forms put him in as good a position as the Copyright Office to decide the issue. While the expertise of the Copyright Office is in “interpretation of the law and its application to the facts presented by the copyright application,” Norris Industries, Inc. v. I.T. & T., 696 F.2d 918, 922 (11th Cir.), cert. denied, — U.S. -, 104 S.Ct. 78, 78 L.Ed.2d 89 (1983), it is permissible for the district court itsélf to consider how the copyright law applies to the articles under consideration.1

Since the four Barnhart forms are con-cededly useful articles, the crucial issue in determining their copyrightability is whether they possess artistic or aesthetic features that are physically or conceptually separable from their utilitarian dimension. A “useful article” is defined in 17 U.S.C. § 101 as “an article having an intrinsic utilitarian function that is not merely to *415portray the appearance of the article or to convey information.” Although 17 U.S.C. § 102(a)(5) extends copyright protection to “pictorial, graphic, and sculptural works,” the definition of “pictorial, graphic, and sculptural works,” at 17 U.S.C. § 101, provides that the design of a useful article

“shall be considered a pictorial, graphic, or sculptural work only if, and only, to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

To interpret the scope and applicability of this language, and the extent to which it may protect useful articles such as the four Barnhart forms, we must turn to the legislative history of the 1976 Copyright Act, which is informative.

Congress, acting under the authority of Art. I, § 8, cl. 8 of the Constitution, extended copyright protection to three-dimensional works of art in the Copyright Act of 1870, which defined copyrightable subject .matter as:

“any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts____” Act. of July 8, 1870, ch. 230,

§ 86, 16 Stat. 198, 212 (repealed 1916). The Supreme Court upheld an expansive reading of “authors” and “writings” in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60, 4 S.Ct. 279, 282, 28 L.Ed. 349 (1884), rejecting the claim that Congress lacked the constitutional authority to extend copyright protection to photographs and negatives thereof. The Court further contributed to the liberalization of copyright law in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460 (1903) (Holmes, J.), in which it held that chromo-lithographs used on a circus poster were not barred from protection under the copyright laws. In Bleistein, Justice Holmes stated his famous “anti-discrimination” principle:

“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final, judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.” Id. at 251-52, 23 S.Ct. at 300-01.

The Copyright Act of 1909 expanded the scope of the copyright statute to protect not only traditional fine arts, but also “[wjorks of art; models or designs for works of art.” Copyright Act of 1909, ch. 320, § 5(g), 35 Stat. 1075, 1077 (codified at 17 U.S.C. §§ 1-216 (1976)), reprinted in 4 M. Nimmer, supra, App. 6, at 6-5. However, this language was narrowly interpreted by Copyright Office regulations issued in 1910, which stated in part:

“Works of art. —This term includes all works belonging fairly to the so-called fine arts. (Paintings, drawings, and sculpture).

“Productions of the industrial arts utilitarian in purpose and character are not subject to copyright registration, even if artistically made or ornamented." Copyright Office, Rules and Regulations for the Registration of Claims to Copyright, Bulletin No. 15 (1910), 8; reprinted in Mazer v. Stein, 347 U.S. 201, 212 n. 23, 74 S.Ct. 460, 467 n. 23, 98 L.Ed. 630 (1954).

The prospects for a work of applied art obtaining a copyright were enhanced in December 1948, when the Copyright Office changed the definition of a “work of art” in its Regulation § 202.8:

“Works of art (Class G) — (a) In General This class includes works of artis*416tic craftsmanship, in so far as their form but not their mechanical or utilitarian aspects are concerned, such as artistic jewelry, enamels, glassware, and tapestries, as well as all works belonging to the fine arts, such as paintings, drawings and sculpture.” 37 C.F.R. § 202.8 (1949), reprinted in Mazer v. Stein, supra, 347 U.S. at 212-13, 74 S.Ct. at 467-68.

While this regulation seemed to expand coverage for works of applied art, it did not explicitly extend copyright protection to industrial design objects.

The next significant historical step was taken not by Congress but by the Supreme Court in its 1954 decision in Mazer v. Stein, supra, where it upheld § 202.8 as a proper standard for determining when a work of applied art is entitled to copyright protection, in the context of deciding whether lamps which used statuettes of male and female dancing figures made of semivitreous china as bases were copyrightable. The narrow question faced was whether the addition of the lamp attachments deprived the statuettes of the copyright protection to which they were separately entitled. The Court answered that question in the negative, holding that an ornamental design does not necessarily cease to be artistic when embodied in a useful article and may therefore be entitled to copyright protection. Id. at 214, 74 S.Ct. at 468.

The Copyright Office implemented Mazer v. Stein by promulgating new regulations interpreting § 5(g) of the 1909 Act, which stated in part:

“(c) If the sole intrinsic function of an article is its utility, the fact that the article is unique and attractively shaped will not qualify it as a work of art. However, if the shape of a utilitarian article incorporates features, such as artistic sculpture, carving, or pictorial representation, which can be Mentified separately and are capable m. existing independently as a work of art, such features will be eligible for registration.” 37 C.F.R. § 202.10(c) ((1959), as amended June 18, 1959) (revoked 1978), reprinted in 4 M. Nimmer, supra, App. 11, at 11-13, to 11-14 (1985).

In an effort to provide some form of protection to “three-dimensional designs of utilitarian articles as such,” a number of separate design bills were introduced into Congress. See, e.g., H.R. 8873 (Willis Bill), 85th Cong., 1st Sess. July 23, 1957, and S. 2075 (O’Mahoney-Wiley-Hart Bill), 86th Cong., 1st Sess. May 28, 1959. Finally, Title II of a bill passed by the Senate in 1975, S.22 (The Design Protection Act of 1975), proposed to offer legal protection to the creators of ornamental designs of useful articles.2 It defined “pictorial, graphic, *417and sculptural works” to “include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, plans, diagrams, and models.”

The House, however, responded by passing a strikingly different version. To.the text passed by the Senate it added the following:

“Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

Both of the added clauses were from work of the Copyright Office: the first from its 1948 Regulation § 202.8, approved by the Supreme Court in Mazer v. Stein; the second from its post-Mazer § 202.10(c).3 The bill as finally enacted omitted entirely the proposed Title II.4

*418The legislative history thus confirms that, while copyright protection has increasingly been extended to cover articles having a utilitarian dimension, Congress has explicitly refused copyright protection for works of applied art or industrial design which have aesthetic or artistic features that cannot be identified separately from the useful article. Such works are not copyrightable regardless of the fact that they may be “aesthetically satisfying and valuable.” H.R.Rep. No. 1476, supra, at 55, 1976 U.S.Code Cong. & Ad.News at 5668.

Applying these principles, we are persuaded that since the aesthetic and artistic features of the Barnhart forms are inseparable from the forms’ use as utilitarian articles the forms are not copyrightable. Appellant emphasizes that clay sculpting, often used in traditional sculpture, was used in making the molds for the forms. It also stresses that the forms have been responded to as sculptural forms, and have been used for purposes other than modeling clothes, e.g., as decorating props and signs without any clothing or accessories. While this may indicate that the forms are “aesthetically satisfying and valuable,” it is insufficient to show that the forms possess aesthetic or artistic features that are physically or conceptually separable from the forms’ use as utilitarian objects to display clothes. On the contrary, to the extent the forms possess aesthetically pleasing features, even when these features are considered in the aggregate, they cannot be conceptualized as existing independently of their utilitarian function.

Appellant seeks to rebut this conclusion by arguing that the four forms represent a concrete expression of a particular idea, e.g., the idea of a woman’s blouse, and that the form involved, a human torso, is traditionally copyrightable. Appellant suggests that since the Barnhart forms fall within the traditional category of sculpture of the human body, they should be subjected to a lower level of scrutiny in determining its copyrightability. We disagree. We find no support in the statutory language or legislative history for the claim that merely because a utilitarian article falls within a traditional art form it is entitled to a lower level of scrutiny in determining its copy-rightability. Recognition of such a claim would in any event conflict with the anti-discrimination principle Justice Holmes enunciated in Bleistein v. Donaldson Lithographing Co., supra, 188 U.S. at 251-52, 23 S.Ct. at 300.

Nor do we agree that copyrightability here is dictated by our decision in Kiesel-stein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989 (2d Cir.1980), a case we described as ■ being “on a razor’s edge of copyright law.” There we were called on to determine whether two belt buckles bearing sculptured designs cast in precious metals and principally used for decoration were copyrightable. Various versions of these buckles in silver and gold sold wholesale at prices ranging from $147.50 to $6,000 and were offered by high fashion and jewelry stores. Some had also been accepted by the Metropolitan Museum of Art for its permanent collection.

*419In concluding that the two buckles were copyrightable' we relied on the fact that “[t]he primary ornamental aspect of the Vaquero and Winchester buckles is conceptually separable from their subsidiary utilitarian function.” Id. at 993. A glance at the pictures of the two buckles, reproduced^ at id. 995, coupled with the description in the text, confirms their highly ornamental dimensions and separability. What distinguishes those buckles from the Barnhart forms is that the ornamented surfaces of the buckles were not in any respect required by their utilitarian functions; the artistic and aesthetic features could thus be conceived of as having been added to, or superimposed upon, an otherwise utilitarian article. The unique artistic design was wholly unnecessary to performance of the utilitarian function. In the case of the Barnhart forms, on the other hand, the features claimed to be aesthetic or artistic, e.g., the life-size configuration of the breasts and the width of the shoulders, are inextricably intertwined with the utilitarian feature, the display of clothes. Whereas a model of a human torso, in order to serve its utilitarian function, must have some configuration of the chest and some width of shoulders, a belt buckle can serve its function satisfactorily without any ornamentation of the type that renders the Kieselstein-Cord buckles distinctive.5

The judgment of the district court is affirmed.

JON O. NEWMAN, Circuit Judge,

dissenting:

This case concerns the interesting though esoteric issue of “conceptual separability” under the Copyright Act of 1976. Because I believe the majority has either misunderstood the nature of this issue or applied an incorrect standard in resolving the issue in this case, I respectfully dissent from the judgment affirming the District Court’s grant of summary judgment for the defendant. I would grant summary judgment to the plaintiff as to two of the objects in question and remand for trial of disputed issues of fact as to the other two objects in question.

*420The ultimate issue in this case is whether four objects are eligible for copyright protection. The objects are molded forms of styrene. Each is a life-size, three-dimensional representation of the front of the human chest. Two are chests of males, and two are chests of females. For each gender, one form represents a nude chest, and one form represents a chest clad with a shirt or a blouse.

Section 102(a)(5) of the Act extends copyright protection to “sculptural works,” which are defined to include “three-dimensional works of fine, graphic, and applied art” and “works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned.” 17 U.S.C. § 101 (1982). The definition of “sculptural works” contains a special limiting provision for “useful articles”:

the design of a useful article, as defined in this section, shall be considered a ... sculptural work only if, and only to the extent that, such design incorporates ... sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.

Id. Each of the four forms in-this case is indisputably a “useful article” as that term is defined in section 101 of the Act, 17 U.S.C. § 101 (1982), since each has the “intrinsic utilitarian function” of serving as a means of displaying clothing and accessories to customers of retail stores. Thus, the issue becomes whether the designs of these useful articles have “sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects” of the ¿forms.

This elusive standard was somewhat clarified by the House Report accompanying the bill that became the 1976 Act. The Report states that the article must contain “some element that, physically or conceptually, can be identified as separable from the utilitarian aspects of that article.” H.R.Rep. No. 1476, 94th Cong., 2d Sess. 55, reprinted in 1976 U.S.Code Cong. & Ad. News 5668 (emphasis added). In this Circuit it is settled, and the majority does not dispute, that “conceptual separability” is distinct from “physical separability” and, when present, entitles the creator of a useful article to a copyright on its design. See Kieselstein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir.1980); see also Trans-World Manufacturing Corp. v. Al Nyman & Sons, Inc., 95 F.R.D. 95, 98-99 (D.Del.1982); but see Esquire, Inc. v. Ringer, 591 F.2d 796, 803-04 (D.C.Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1217, 59 L.Ed.2d 456 (1979) (arguably rejecting the independent force of “conceptual separability”).

What must be carefully considered is the meaning and application of the principle of “conceptual separability.”1 Initially, it *421may be helpful to make the obvious point that this principle must mean something other than “physical separability.” That latter principle is illustrated by the numerous familiar examples of useful objects ornamented by a drawing, a carving, a sculpted figure, or any other decorative embellishment that could physically appear apart from the useful article. Professor Nimmer offers the example of the sculptured jaguar that adorns the hood of and provides the name for the well-known British automobile. See 1 Nimmer on Copyright § 2.08[B] at 2-96.1 (1985).. With all of the utilitarian elements of the automobile physically removed, the concept, indeed the embodiment, of the artistic creation of the jaguar would remain. Since “conceptual separability” is not the same as “physical separability,” it should also be obvious that a design feature can be “conceptually separable” from the utilitarian aspect of a useful article even if it cannot be separated physically.2

There are several possible ways in which “conceptual separability” might be understood. One concerns usage. An article used primarily to serve its utilitarian function might be regarded as lacking “conceptually separable” design elements even though those design elements rendered it usable secondarily solely as an artistic work. There is danger in this approach in that it would deny copyright protection to designs of works of art displayed by a minority because they are also used by a majority as useful articles. The copyrightable design of a life-size sculpture of the human body should not lose its copyright protection simply because mannequin manufacturers copy it, replicate it in cheap materials, and sell it in large quantities to department stores to display clothing.

A somewhat related approach, suggested by a sentence in Judge Oakes’ opinion in Kieselstein-Cord, is to uphold the copyright, whenever the decorative or aesthetically pleasing aspect of the article can be said to be “primary” and the utilitarian function can be said to be “subsidiary.” 632 F.2d at 993. This approach apparently does not focus- on frequency of utilitarian and non-utilitarian usage Since the belt buckles in that case were frequently used to fasten belts and less frequently used as pieces of ornamental jewelry displayed at various-locations other than the waist. The difficulty with this approach is that it offers little guidance to the trier of fact, or the judge endeavoring to determine whether a triable issue of fact exists, as to what is being measured by the classifications “primary” and “subsidiary.”

Another approach, also related to the first, is suggested by Professor Nimmer, who argues that' “conceptual separability exists where there is any substantial likelihood that even if the article had no utilitarian use it would still be marketable to some significant segment of the community simply because of its aesthetic qualities.” 1 Nimmer, supra, § 2.08[B] at 2-96.2 (foot*422note omitted). This “market” approach risks allowing a copyright only to designs of forms within the domain of popular art, a hazard Professor Nimmer acknowledges. See id. at 2-96.3. However, various sculpted forms would be recognized as works of art by many, even though those willing to purchase them for display in their homes might be few in number and not a “significant segment of the community.”

Some might suggest that “conceptual separability” exists whenever the design of a form has sufficient aesthetic appeal to be appreciated for its artistic qualities. That approach has plainly been rejected by Congress. The House Report makes clear that, if the artistic features cannot be identified separately, the work is not copyrightable even though such features are “aesthetically satisfying qnd valuable.” H.R. Rep. No. 1476, supra, at 55, 1976 U.S.Code Cong. & Ad.News at 5668. A chair may be so artistically designed as to merit display in a museum, but that fact alone cannot satisfy the test of “conceptual separateness.” The viewer in the museum sees and apprehends a well-designed chair, not a work of art with a design that is conceptually separate from the functional purposes of an object on which people sit.

How, then, is “conceptual separateness” to be determined? In my view, the answer derives from the word “conceptual.” For the design features to be “conceptually separate” from the utilitarian aspects of the useful article that embodies the design, the article must stimulate in the mind of the beholder a concept that is separate from the concept evoked by its utilitarian function. The test turns on what may reasonably be understood to be occurring in the mind of the beholder or, as some might say, in the “mind’s eye” of the beholder. This formulation requires consideration of who the beholder is and when a concept may be considered “separate.”

I think the relevant beholder must be that most useful legal personage — the ordinary, reasonable observer. This is the same person the law enlists to decide other conceptual issues in copyright law, such as whether an allegedly infringing work bears a substantial similarity to a copyrighted work. See, e.g., Herbert Rosenthal Jewelry Corp. v. Honora Jewelry Co., 509 F.2d 64 (2d Cir.1974); 3 Nimmer, supra, § 13.-03[E], Of course, the ordinary observer does not actually decide the issue; the trier of fact determines the issue in light of the impressions reasonably expected to be made upon the hypothetical ordinary observer. And, as with other issues decided by reference to the reactions of an ordinary observer, a particular case may present undisputed facts from which a reasonable trier could reach only one conclusion, in which event the side favored by that conclusion is entitled to prevail as a matter of law and have summary judgment entered in its favor. See, e.g., Kieselstein-Cord v. Accessories by Pearl, Inc., supra (copyright proprietor prevails on issue of “conceptual separability” as a matter of law).

The “separateness” of the utilitarian and non-utilitarian concepts engendered by an article’s design is itself a perplexing concept. I think the requisite “separateness” exists whenever the design creates in the mind of the ordinary observer two different concepts that are not inevitably entertained simultaneously. Again, the example of the artistically designed chair displayed in a museum may be helpful. The ordinary observer can be expected to apprehend the design of a chair whenever the object is viewed. He may, in addition, entertain the concept of a work of art, but, if this second concept is engendered in the observer’s mind simultaneously with the concept of the article’s utilitarian function, the requisite “separateness” does not exist. The test is not whether the observer fails to recognize the object as a chair but only whether the concept of the utilitarian function can be displaced in the mind by some other concept. That does not occur, at least for the ordinary observer, when viewing even the most artistically designed chair. It may occur, however, when viewing some other object if the utilitarian function of the object is not perceived at all; it may also occur, even when the utilitarian function is perceived by observation, per*423haps aided by explanation, if the concept of the utilitarian function can be displaced in the observer’s mind while he entertains the separate concept of some non-utilitarian function. The separate concept will normally be that of a work of art.

Some might think that the requisite separability of concepts exists whenever the design of a form engenders in the mind of the ordinary observer any concept that is distinct from the concept of the form’s utilitarian function. Under this approach, the design of an artistically designed chair would receive copyright protection if the ordinary observer viewing it would entertain the concept of a work of art in addition to the concept of a chair. That approach, I fear, would subvert the Congressional effort to deny copyright protection to designs of useful articles that are aesthetically pleasing. The impression of an aesthetically pleasing design would be characterized by many as the impression of a work of art, thereby blurring the line Congress has sought to maintain. I believe we would be more faithful to the Congressional scheme if we insisted that a concept, such as that of a work of art, is “separate” from the concept of an article’s utilitarian function only when the non-utilitarian concept can be entertained in the mind of the ordinary observer without at the same time contemplating the utilitarian function. This temporal sense of separateness permits the designs of some useful articles to enjoy copyright protection, as provided by the 1976 Act, but avoids according protection to every design that can be appreciated as a work of art, a result Congress rejected. The utilitarian function is not truly a separate concept for purposes of “conceptual separateness” unless the design engenders a non-utilitarian concept without at the same time engendering the concept of a utilitarian function.

In endeavoring to draw the line between the design of an aesthetically pleasing useful article, which is not copyrightable, and the copyrightable design of a useful article that engenders a concept separate from the concept of its utilitarian function, courts will inevitably be drawn into some minimal inquiry as to the nature of art. The need for the inquiry.is regrettable, since courts must not become the arbiters of taste in art or any other aspect of aesthetics. However, as long as “conceptual separability” determines whether the design of a useful article is copyrightable, some threshold assessment of art is inevitable since the separate concept that will satisfy the test of “conceptual separability” will often be the concept of a work of art. Of course, courts must not assess the quality of art, but a determination of whether a design engenders the concept of a work of art, separate from the concept of an article’s utilitarian function, necessarily requires some consideration of whether the object is a work of art.

Both the trier determining the factual issue of “conceptual separability” and the judge deciding whether the undisputed facts permit a reasonable trier to reach only one conclusion on the issue are entitled to consider whatever evidence might be helpful on the issue, in addition to the visual impressions gained from the article in question. Thus, the fact that an object has been displayed or used apart from its utilitarian function, the extent of such display or use, and whether such display or use resulted from purchases would all be relevant in determining whether the design of the object engenders a separable concept of a work of art. In addition, expert opinion and survey evidence ought generally to be received. The issue need not turn on the immediate reaction of the ordinary observer but on whether visual inspection of the article and consideration of all pertinent evidence would engender in the observer’s mind a separate non-utilitarian concept that can displace, at least temporarily, the utilitarian concept.

This approach seems consistent with and may even explain the few cases to have considered the issue, although the language in all of the decisions may not be entirely reconcilable. In Kieselstein-Cord, we upheld the copyrightability of the artistic design of two belt buckles. This holding was based upon a conclusion that the *424design of the buckles was conceptually separate from the utilitarian function of fastening,. a belt. That view, in turn, was based in part on the undisputed fact that consumers with some frequency wore the buckles as ornamental jewelry at locations other than the waist. The Court apparently concluded that the buckles had created in the minds of those consumers a conception of the design as ornamental jewelry separate from the functional aspect of a belt buckle. Expert testimony supported the view that the buckles rise to the level of creative art. 632 F.2d at 994. The case was characterized by Judge Oakes as on a razor s edge of copyright law, id. at 990, as indeed it. was; some might have thought that even though some consumers wore the buckle as ornamental jewelry, they still thought of the article as a belt buckle, albeit one so artistically designed as to be appropriate for wearing elsewhere than at the waist. Whether the concept in the mind of the ordinary observer was of a piece of ornamental jewelry separate from the concept of a belt buckle, or only the concept of a belt buckle that could be used either to fasten a belt or decorate clothing at any location was undoubtedly a close question.

In Trans-World Manufacturing Corp., supra, the interesting design of a display case for eyeglasses was deemed to create for the trier of fact a fair question as to whether a concept separable from the utilitarian function existed. By contrast, the designs of the wheel cover in Norris Industries v. I.T. & T., 696 F.2d 918 (11th Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 78, 78 L.Ed.2d 89 (1983), and the outdoor lighting fixture in Esquire, Inc. v. Ringer, supra, were each deemed, as a matter of law, to engender no concept that was sepa-rabie from the utilitarian function of each article. It evidently was thought that an ordinary observer viewing the articles would have in mind no conception separate from that of a wheel cover (Norris) or a lighting fixture (Esquire).

Qur case involving the four styrene chest forms seems to me a much easier case than Kieselstein-Cord. An ordinary observer, indeed, an ordinary reader of this opinion wh0 views the two unclothed forms depict-ecj jn figures 1 and 2 below, would be most unlikely even to entertain, from visual inspection alone, the concept of a mannequin with the utilitarian function of displaying a shirt or a blouse. The initial concept in the observer’s mind, I believe, would be of an art object, an entirely understandable mental impression based on previous viewing of unclad torsos displayed as artistic sculptures. Even after learning that these two forms are used to display clothing in retail stores, the only reasonable conclusion that an ordinary viewer would reach is that the forms have both a utilitarian function and an entirely separate function of serving as a WOrk of art. I am confident that the ordinary observer could reasonably con-elude only that these two forms are not simply mannequins that happen to have sufficient aesthetic appeal to qualify as works of art, but that the conception in the mind is that of a work of art in addition to and capable of being entertained separately from the concept of a mannequin, if the latter concept is entertained at all. As appellant contends, with pardonable hyperbole, the design of Michelangelo’s “David” would not cease to be copyrightable simply because cheap copies of it were used by a retail store to display clothing.

*425

This is not to suggest that the design of every form intended for use as a mannequin automatically qualifies for copyright protection whenever it is deemed to have artistic merit. Many mannequins, perhaps most, by virtue of the combination of the material used, the angular configuration of the limbs, the facial features, and the representation of hair create the visual impression that they are mannequins and not anything else. The fact that in some instances a mannequin of that sort is displayed in a store as an eye-catching item apart from its function of enhancing the appearance of clothes, in a living room as a conversation piece, or even in a museum as an interesting example of contemporary industrial design does not mean that it engenders a concept separate from the concept of a mannequin. The two forms depicted in figures 1 and 2, however, if perceived as mannequins at all, clearly engender an entirely separable concept of an art object, one that can be entertained in the mind without simultaneously perceiving the forms as mannequins at all.

The majority appears to resist this conclusion for two reasons. First, the majority asserts that the appellant is seeking application of a lower level of scrutiny on the issue of copyrightability because the forms depict a portion of the human body. I do not find this argument anywhere in the appellant’s briefs. In any event, I agree with the majority that no lower level of scrutiny is appropriate. But to reject a lower level is not to explain why appellant does not prevail under the normal level. Second, the majority contends that the design features of the forms are “inextricably intertwined” with their utilitarian function. This intertwining is said to result from the fact that a form must have “some configuration of the chest and some width of shoulders” in order to serve its utilitarian function. With deference, I believe this approach misapplies, if it does not ignore, the principle of “conceptual separability.” Of course, the design features of these forms render them suitable for their utilitarian function. But that fact only creates the issue of “conceptual separability”; it does not resolve it. The question to be decided is whether the design features of these forms create in the mind of an ordinary viewer a concept that is entirely separable from the utilitarian function. Unlike a form that always creates in the observer’s mind the concept of a mannequin, each of these unclothed forms creates the separate concept of an object of art — not just an aesthetically pleasing mannequin, but *426an object of art that in the mind’s eye can be appreciated as something other than a mannequin.

Of course, appellant’s entitlement to a copyright on the design of the unclothed forms would give it only limited, though apparently valuable, protection. The copyright would not bar imitators from designing human chests. It would only bar them from copying the precise design embodied in appellant’s forms.

As for the two forms, depicted in figures 3 and 4 below, of chests clothed with a shirt or a blouse, I am uncertain what concept or concepts would be engendered in the mind of an ordinary observer.

I think it is likely that these forms too would engender the separately entertained concept of an art object whether or not they also engendered the concept of a mannequin. But this is not the only conclusion a reasonable trier could reach as to the perception of an ordinary observer. That observer might always perceive them as mannequins or perhaps as devices advertising for sale the particular style of shirt or blouse sculpted on each form.3 I think a reasonable trier could conclude either way on the issue of “conceptual separability” as to the clothed forms. That issue is therefore not amenable to summary judgment and should, in my view, be remanded for trial. In any event, I do not agree that the only reasonable conclusion a trier of fact could reach is that the clothed forms create no concept separable from the concept of their utilitarian function.

I would grant summary judgment to the copyright proprietor as to the design of the two nude forms and remand for trial with respect to the two clothed forms.

JACOBS, Circuit Judge:

Defendant PAJ, Inc. (“PAJ”) appeals from a judgment entered by the United States District Court for the Southern District of New York (Sweet, J.), following a jury verdict that found PAJ liable to plaintiff Yurman Design, Inc. (“Yurman”) on *107claims of (1) copyright infringement, (2) trade dress infringement under the Lan-ham Act, and (3) unfair competition under New York law — all of these claims arising out of PAJ’s manufacture and sale of jewelry featuring the use of twisted, multi-strand cable together with other design elements, including gemstones. Yurman cross-appeals post-trial rulings by the district court (1) refusing to award attorneys’ fees on the Lanham Act claim, and (2) vacating the jury’s award of punitive damages on the state law unfair competition claim.

On the appeal, we affirm the judgment as to the copyright claims but reverse as to the Lanham Act and state law unfair competition claims. That resolution moots the cross-appeal.

BACKGROUND

Yurman, a firm based in New York City, has been designing, manufacturing and marketing fine jewelry since approximately 1982. Its president and founder, David Yurman, has made the firm famous for its lines of twisted cable pieces. The firm markets its jewelry products under the brand name DAVID YURMAN®.

PAJ, founded in 1978, is a smaller jewelry company based in Dallas, Texas. PAJ entered the cable jewelry market in 1998. In the fall of that year, Yurman advised PAJ in a letter that PAJ was producing and selling a line of costume jewelry that copied Yurman designs, and demanded that PAJ cease and desist. PAJ failed to respond to the cease and desist letter by a two-week deadline, and Yurman filed this suit alleging copyright, Lanham Act, and state law unfair competition violations. As to the copyright claims, Yurman charged that PAJ had infringed five Yurman copyrights in earring and bracelet designs by marketing five jewelry pieces with substantially similar designs. Yurman also alleged that a single trade dress was discernible in its five copyrighted designs as well as in 13 other Yurman bracelets, earrings and rings, and that 21 PAJ pieces violated the Lanham Act because their similarities to this trade dress were likely to cause confusion concerning the jewelry’s source. Finally, Yurman alleged that PAJ violated New York’s unfair competition law because the trade dress violation was committed in bad faith and caused actual confusion among consumers.

On November 1, 1999, following a seven day trial, the jury returned a special verdict largely favorable to Yurman. On the copyright claims, the panel concluded that four PAJ products infringed four Yurman copyrighted designs. As to copyright damages, the Copyright Act affords a plaintiff the option of seeking either actual damages suffered plus profits earned by the infringer or “statutory damages.” 17 U.S.C. § 504. Yurman elected to seek statutory damages, which at the time allowed an award of up to $100,000 per work infringed if the violation was willful, or up to $20,000 per work if it was not. See 17 U.S.C.A. §§ 504(c)(l)-(2) (West 1996 & Supp.1999).1 The jury found that PAJ had infringed each of Yurman’s four copyrights willfully, and awarded a total $275,000. By way of injunctive relief for those copyright violations, Judge Sweet prohibited PAJ from manufacturing or selling its four infringing products, and ordered the company to destroy all infringing pieces within its control. See Yurman Design v. PAJ, Inc., 93 F.Supp.2d 449, 466 (S.D.N.Y.2000).

On the Lanham Act claim, the jury found that Yurman’s trade dress was distinctive as to the jewelry’s source, and that *108twenty PAJ bracelets, earrings and rings infringed the trade dress because they were likely to cause confusion concerning the source of PAJ’s jewelry. Because the panel further found that PAJ violated Yur-man’s trade dress in bad faith, and actually caused confusion in the minds of consumers, the jury also found that PAJ violated New York’s unfair competition law. Although the jury declined to require PAJ to disgorge any profits it made in connection with the trade dress and unfair competition violations, the panel did award Yur-man $800,000 in punitive damages based on the state law claim.

The district court, in considering Yur-man’s request for equitable relief on the trade dress and state law claims, identified a hole in Yurman’s case that it found problematic, and that we conclude is fatal: “try as it might, the Court [could not] divine precisely what [Yurman’s] specific trade dress was.” Yurman Design, 93 F.Supp.2d at 466. Recognizing that Yur-man’s “inability to articulate the trade dress” posed “significant problems, for the Court in issuing an injunction,” Judge Sweet devised what he called an “imperfect solution.” Id. The injunction bars PAJ from manufacturing or selling its 20 infringing products, and orders the company to destroy all infringing pieces within its control. See id. at 466.

After the verdict, PAJ moved for judgment as a matter of law under Rule 50(b) on each of the claims and to set aside the jury’s damages determinations. In a published opinion, the district court declined to disturb any of the liability findings, or the award of statutory damages on the copyright claims, but did vacate the state law punitive damages award. See id. at 455-63.

Yurman cross-moved for attorneys’ fees under the Copyright Act and the Lanham Act. Judge Sweet granted an award of fees on the copyright claims but denied an award on the Lanham Act claim. See id. at 463-65.

DISCUSSION

PAJ’s appeal chiefly concerns the district court’s denial of its Rule 50(b) motion for judgment notwithstanding the verdict on all of the jury’s liability determinations. In light of our disposition of that appeal, we need not consider Yurman’s cross-appeal regarding attorneys’ fees and punitive damages.

We review the denial of a Rule 50 motion de novo. See Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir.2000). The motion may not be granted unless “the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable [persons] could have reached.” This is Me, Inc. v. Taylor, 157 F.3d 139, 142 (2d Cir.1998) (internal quotation marks omitted). This standard will be met “[o]nly if there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture, or such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against” the moving party. Diesel, 232 F.3d at 103.

We consider, in order, PAJ’s challenges to the judgment under the Copyright Act, the Lanham Act and New York’s unfair competition law.

I

A. Copyright Liability

To prevail on a claim of copyright infringement, the plaintiff must demon*109strate both (1) ownership of a valid copyright and (2) infringement of the copyright by the defendant. See Hamil America, Inc. v. GFI, 193 F.3d 92, 98 (2d Cir.1999). PAJ argues that Yurman failed to establish either element with respect to any of Yurman’s four claims of infringement, and further, that Yurman’s copyrights are invalid under the “merger doctrine.” We disagree with all of these contentions.

1. Validity of the Copyrights

Under the Constitution and by statute, copyright validity depends upon originality. See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-47, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); U.S. Const. art. I, § 8, cl. 8 (authorizing Congress to “promote the Progress of ... useful Arts, by securing for limited Times to Authors ... the exclusive Right to their respective Writings”); 17 U.S.C. § 102. “Originality” in this context “means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity.” Feist Publications, Inc., 499 U.S. at 345, 111 S.Ct. 1282. The “requisite level of creativity is extremely low; even a slight amount will suffice.” Id.

Because all four Yurman designs at issue are registered in the United States Register of Copyrights, there is a statutory presumption that the copyrights are valid. See Hamil America, 193 F.3d at 98; 17 U.S.C. § 410(c). PAJ, which bears the burden of proving the invalidity of a registered copyright, see Hamil America, 193 F.3d at 98, was required to show that there was “such an overwhelming amount of evidence” of nonoriginality “that reasonable and fair minded men could not” have found the four Yurman designs to be original. Diesel, 232 F.3d at 103 (internal quotation marks omitted); see Granite Computer Leasing Corp. v. Travelers Indem. Co., 894 F.2d 547, 551 (2d Cir.1990) (“A verdict should be directed [in favor of the party with the burden of proof] only if the evidence in favor of the movant is so overwhelming that the jury could rationally reach no other result.”).

Yurman’s four copyrighted bracelets and earrings consist of “silver, gold, cable twist, and cabochon cut colored stones.”2 Appellee’s Brief at 19. Yurman of course concedes that none of those constituent elements, considered alone, is original. What Yurman seeks to protect by copyright is the “artistic combination and integration of these common elements,” i.e., the particular way in which the' elements “are placed, balanced and harmonized” in the four designs. Id. at 18-19.

Copyright law may protect a combination of elements that are unoriginal in themselves. With respect to compilations of facts, for example, protection extends to choices of “selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity.” Feist Publications, 499 U.S. at 348, 111 S.Ct. 1282. The same principles apply to “derivative work[s],” which are “based upon one or more preexisting works.” 17 U.S.C. § 101. Jewelry designs have been viewed as fitting within this latter category. See Diamond Direct, LLC v. Star Diamond Group, 116 F.Supp.2d 525, 529 (S.D.N.Y.2000) (Kaplan, J.) (considering the originality of diamond ring designs). In either case, however, the copyright “extends only to the material contributed by the author *110of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material.” 17 U.S.C. § 103(b); see Feist Publications, 499 U.S. at 348, 111 S.Ct. 1282 (“[C]opyright protection [in a factual compilation] extend[s] only to those components of a work that are original to the author.”).

To rebut the presumption that Yurman’s four designs are original, PAJ offered evidence that some other companies make jewelry that includes twisted cable as a design element, and that some of those jewelry pieces also include gemstones and other elements found in Yurman’s products. This showing misses the point, however: the originality in Yurman’s four designs inheres in the ways Yurman has recast and arranged those constituent elements. We have carefully reviewed the cable jewelry produced by third parties that PAJ submitted to the jury, and cannot conclude that any of Yurman’s four combinations are nonoriginal as a matter of law.

2. Copyright Infringement

To establish infringement, the copyright owner must demonstrate that “(1) the defendant has actually copied the plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the defendant’s work and the protectible elements of plaintiffs.” Hamil America, 193 F.3d at 99 (internal quotations omitted).

Under the Copyright Act, one may market a product identical to a copyrighted work so long as the second comer designed his product independently. See Feist Publications, 499 U.S. at 345-46, 111 S.Ct. 1282 (“Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.”). PAJ concedes that it based its four pieces in part on the Yur-man designs, but it offers the qualification that it learned — only later — that the designs it innocently copied had been copyrighted by Yurman. This concession is sufficient to satisfy the “actual copying” element, and the qualification is ineffective to rebut it. See Procter & Gamble Co. v. Colgate-Palmolive Co., 199 F.3d 74, 77 (2d Cir.1999) (per curiam) (“ ‘innocent’ copying is still copying” under copyright law).

While PAJ admits that it did not independently create its designs, it contends nevertheless that the similarities between its products and Yurman’s are not sufficiently “substantial” to trigger liability. PAJ’s “substantial similarity” argument raises a threshold issue as to our standard of review. PAJ cites a line of our cases to support the proposition that review of “substantial similarity” under copyright law is de novo. In each such case, however, we were reviewing judgments entered after a bench trial, and we departed from the “clearly erroneous” standard normally applicable to a trial judge’s factual findings, Fed. R. Civ. Pro. 52(a), “because what is required is only a visual comparison of the works, rather than credibility, which we are in as good a position to decide as was the district court.” Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 766 (2d Cir.1991); see Hamil America, 193 F.3d at 97 (same). Cf. Concord Fabrics, Inc. v. Marcus Bros. Textile Corp., 409 F.2d 1315, 1317 (2d Cir.1969) (per curiam) (“[A]s no part of the decision below turned on credibility, we are in as good a position to determine the question as is the district court.”). However, we have never decided the standard of review applicable to jury findings of substantial similarity where credibility is not at issue. See Segrets, Inc. v. Gillman Knitwear Co., 207 F.3d 56, 63 (1st Cir.2000) (“We have *111found no Second Circuit cases applying [its judge-made de novo ] standard to a finding of substantial similarity by a jury.”).

Although a jury’s factual findings are subject to “independent review” where such review is constitutionally required, Bose Corp. v. Consumers Union, 466 U.S. 485, 501, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (First Amendment), we think that in copyright cases the Constitution dictates a more deferential standard. The Supreme Court’s holding in Feltner was that “the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages under § 504(c) of the Copyright Act, including the amount itself.” Feltner, 523 U.S. at 355, 118 S.Ct. 1279 (emphasis added). Because de novo review of “substantial similarity” could have the effect of impairing that Seventh Amendment right, we hold that a jury’s findings as to “substantial similarity” are subject to the same deferential review under Rule 50 that applies to other jury findings.

The standard test for substantial similarity between two items is whether an “ ‘ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’” 3 Hamil America, 193 F.3d at 100 (quoting Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) (L.Hand, J.)). If “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work,” then the two products are substantially similar. Hamil America, 193 F.3d at 100; see Knitwaves, Inc. v. Lollytogs, Ltd., 71 F.3d 996, 1003 (2nd Cir.1995). The fact-finder must examine the works for their “ ‘total concept and feel.’ ” Hamil America, 193 F.3d at 102 (quoting Knitwaves, 71 F.3d at 1002).

Applying the ordinary observer test, the jury separately found that the four PAJ designs were “substantially similar” to the four Yurman copyrighted pieces. Although PAJ is able to cite several “differences in detail” in each comparison, a finding of substantial similarity is not precluded where differences in detail “do little to lessen a viewer’s overwhelming impression” that the defendant’s products are “appropriations.” Knitwaves, 71 F.3d at 1004; accord Hamil America, 193 F.3d at 102. Applying our own “good eyes and common sense” to each of the comparisons, Hamil America, 193 F.3d at 102, we are unable to say that the jury’s conclusions were “the result of sheer surmise and conjecture.” Diesel, 232 F.3d at 103.

3. The Merger Doctrine

By statute, copyrights protect the particular means of expressing ideas, not the ideas themselves. See 17 U.S.C. § 102(b). So if there is just one way to express an idea, the idea and expression are said to merge, and the expression is not protectable. See Hart v. Dan Chase Taxidermy Supply Co., 86 F.3d 320, 322 (2d Cir.1996) (“[T]he merger inquiry asks whether all realistic fish mannequins, no matter how artistic they might be, will necessarily be ‘substantially similar.’ And *112only if this is so, is there no unique expression to protect under the copyright laws.”); CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 68 (2d Cir.1994). The test is whether “protection of expression would inevitably accord protection to an idea.” CCC Info. Servs., 44 F.3d at 72 n. 26.

PAJ’s brief contends that Yurman is trying to protect the idea of “using cable design (which is in the public domain), with gemstones (also in [the] public domain), in one or more combinations (also in [the] public domain).” Appellant’s Brief at 59. At least as to Yurman’s copyright claims (as opposed to its trade dress claims), PAJ’s assertion is simply wrong. Yur-man’s position on the copyright claims is that its designs, which express original combinations of unprotectable elements, were infringed by four very similar-looking PAJ designs; Yurman’s copyright claims do not seek protection for the idea of combining twisted cable and gemstones.

B. Copyright Damages

As explained above, the Copyright Act allows plaintiffs to sue for “statutory damages” in lieu of “actual damages and profits.” 17 U.S.C. § 504(c). Yurman elected statutory damages, which ranged (at the time) between $500 and $20,000 per work infringed, and up to $100,000 per work if the infringement was willful. See 17 U.S.C.A. §§ 504(c)(l)-(2) (West 1996 & Supp.1999).4 The jury found that each of PAJ’s four infringements was willful, and awarded a total of $275,000. PAJ argues that the willfulness finding is unsustainable, and in the alternative that it is excessive. We consider these two arguments in order.

Willfulness in this context means that the defendant “recklessly disregarded” the possibility that “its conduct represented infringement.” Hamil America, 193 F.3d at 97; see Knitwaves, 71 F.3d at 1010 (“Reckless disregard of the copyright holder’s rights ... suffices to warrant award of the enhanced damages.”). A plaintiff is not required to show that the defendant “had knowledge that its actions constitute^] an infringement.” Knitwaves, 71 F.3d at 1010 (internal quotation, marks omitted).

We review the jury’s findings of willfulness under the same deferential Rule 50 standard that applies to factual determinations pertinent to liability. Cf. Hamil America, 193 F.3d at 97 (reviewing a trial judge’s willfulness finding for clear error). Under that deferential standard of review, we cannot disturb the jury’s willfulness findings.

Viewed in the light most favorable to Yurman, the evidence at trial disclosed the following facts. At a meeting in September 1997, PAJ’s chief executive officer, Felix Chen, met with a buyer for Zales Corporation to discuss the possibility that PAJ would'make jewelry for Zales. The Zales buyer, Carrie Beckerich, provided PAJ with certain cable jewelry samples (the “Samples”) and asked whether PAJ could manufacture jewelry products based on the Samples. Beckerich explained that she had obtained the Samples from an Italian manufacturer, Menegatti.

In fact, the Menegatti designs—the Samples—were based on copyrighted Yur-man pieces that Beckerich had earlier provided to Menegatti. Beckerich did not tell PAJ the pedigree of the Samples, but she did mention David Yurman’s name to PAJ representatives. PAJ requested nothing *113in writing concerning the origin of the Samples, made no inquiry concerning the background of Menegatti, and made no investigation of any kind.

Based on the Samples, PAJ produced a number of jewelry pieces for Zales. In December 1997, Zales returned the PAJ products, explaining that Zales would only be buying cable jewelry from Yunnan, and that the PAJ designs were similar. As Chen testified:

Q: [The Zales buyer] also mentioned to you that she was returning the merchandise to you because it was similar; don’t you recall you said that?

A: Yes. It means cable jewelry.

Q: She said it was similar, didn’t she?

A: She probably said that.

The jury could infer from the return of the goods, and the explanation for it, that PAJ was warned of the potential similarity of the goods and should have taken appropriate steps to check for copyright infringement. Instead, without any investigation of intellectual property issues, PAJ embarked on a heavy advertising program to market the designs under its own label.

PAJ testified that it was unaware of Yurman’s copyrights. But the jury was free to discredit that testimony, or to find that PAJ’s ignorance was due to recklessness. See Hamil America, 193 F.3d at 97 (requiring “particular deference to determinations regarding witness credibility” when reviewing a willfulness determination); accord Knitwaves, 71 F.3d at 1010. PAJ’s Chen, the man who had final decision-making authority over PAJ’s conduct in this case, has been in the jewelry business for 23 years, and has had intellectual property counsel for over twelve years. He attends many of the major jewelry industry trade shows, and knew about Yurman’s cable jewelry designs at all relevant times. Cf. N.A.S. Import, Corp. v. Chenson Enters., 968 F.2d 250, 253 (2d Cir.1992) (similarity of buckle design, in conjunction with close proximity of plaintiffs and defendant’s stores, strongly supported finding of knowing appropriation); Fitzgerald Pub’g Co. v. Baylor Pub’g Co., 807 F.2d 1110, 1115 (2d Cir.1986) (defendant’s position as an experienced publisher treated as a circumstance supporting a finding that defendant had constructive knowledge of its infringement).

This evidence — PAJ’s receipt of the copyrighted designs, its knowledge of Yur-man’s product line, and its failure to investigate the possibility of intellectual property violations after Zales returned the jewelry — provided a sufficient basis for an inference by the jury that the infringements were willful.

Because the jury found that PAJ infringed each of the four Yurman copyrights willfully, the Copyright Act permitted the panel to award between $500 and $100,000 “in its discretion.” 17 U.S.C. § 504(c)(2); see D.C. Comics, Inc. v. Mini Gift Shop, 912 F.2d 29, 34 (2d Cir.1990) (“the court’s discretion and sense of justice are controlling” (internal quotation marks omitted)). Although this is our first opportunity to review an award of statutory damages assessed by a jury, we see no reason to apply a less deferential standard than the standard we use to review calculations by a trial judge.

The jury’s combined award of $275,000 amounts to $68,750 per work infringed, which is within the statutory range. Given the jury’s sustainable finding of willfulness, we decline to alter the remedy. PAJ challenges the award chiefly on the ground that it bears little relationship to the $19,000 in profits PAJ claimed to have earned on the jewelry at issue in this case. But even if PAJ’s accounting is correct, statutory damages are not meant to be merely compensatory or restitution-*114ary. See N.A.S. Import, 968 F.2d at 252. The statutory award is also meant "to discourage wrongful conduct." Id. That is why the statute permits consideration of $80,000 in additional damages where an infringement is willful.

II

Yurman argued to the jury that its trade dress could be discerned from an entire product line of 18 different Yurman pieces-eight rings, seven bracelets, and three pairs of earrings. The overall impression conveyed by the Yurman designs that are alleged to embody Yurman's trade dress is a structural, almost industrial motif of twisted multi-strand cable, executed with a polished and elegant finish, and set off by gemstones. We need not decide whether these design elements are pro-tectable as trade dress, or whether the overall impression can be expanded upon, because as the district court observed, Yurman itself has never identified the elements that make up its trade dress. We hold for the reasons that follow that this failure to articulate the dress required dismissal of the Lanham Act claim as a matter of law.

Section 45 of the Lanham Act defines "trademark" as "any word, name, symbol, or device, or any combination thereof [used or intended to be used] to identify and distinguish [a producer's] goods . .. from those manufactured or sold by others and to indicate the source of the goods. .. ." 15 U.S.C. § 1127. The owner of a trademark may apply to register it by filing inter alia "a drawing of the mark" in the United States Patent and Trademark Office. Lanham Act § 1(a)(1)(B), 15 U.S.C. § 1051(a)(1)(B). Among other privileges, registration of a mark "enables the owner to sue an infringer under § 32, 15 U.S.C. § 1114," and "entitles the owner to a presumption that its mark is valid, see § 7(b), 15 U.S.C. § 1057(b)." Wal-Mart Stores v. Samara Bros., 529 U.s. 205, 209, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000).

Yurman has not registered what it seeks to protect as a trademark in this case, so it is proceeding under § 43(a) of the Lanham Act, which prohibits a person from using "any word, term, name, symbol, or device, or any combination thereof" that is "likely to cause confusion . . as to the origin, sponsorship, or approval of his or her goods." 15 U.S.C. § 1125(a).

Although § 43 proscribes "a broader range of practices" than does the cause of action for infringement of registered marks, "the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a)." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). Accordingly, both § 2 and § 43(a) have been construed to embrace not just source-identifying "word marks, such as `Nike,' and symbol marks, such as Nike's `swoosh' symbol, but also `trade dress.'" Samara Bros., 529 U.S. at 209, 120 S.Ct. 1339. Trade dress "originally included only the packaging, or `dressing,' of a product,'~ but it has been expanded to encompass what is at issue in this case: the design or configuration of the product itself. Id.

We exercise "particular `caution,' when extending protection to product designs." Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 380 (2d Cir.1997) (quoting Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 32 (2d Cir.1995)). Although the Lanham Act protects marks that "consumers are likely to rely upon in distinguishing goods," Landscape Forms, 113 F.3d at 380, "almost invariably, even the most unusual of *115product designs such as a cocktail shaker shaped like a penguin-is intended not to identify the source” of the product, “but to render the product itself more useful or more appealing,” Samara Bros., 529 U.S. at 213, 120 S.Ct. 1339. See Restatement (Third) of Unfair Competition § 16 cmt.b at 159 (1995) (“Product designs are more likely to be seen merely as utilitarian or ornamental aspects of the goods.”). And trade dress claims raise a potent risk that relief will impermissibly afford a level of “protection that would hamper efforts to market competitive goods.” Landscape Forms, 113 F.3d at 380; see id. at 379 (“[T]he Lanham Act must be construed in the light of a strong federal policy in favor of vigorously competitive markets.”); Jeffrey Milstein, 58 F.3d at 33. While most trademarks only create a monopoly in a word, a phrase, or a symbol, “granting trade dress protection to an ordinary product design would create a monopoly in the goods themselves.” Landscape Forms, 113 F.3d at 380.

A plaintiff asserting trade dress rights in the design of a product is therefore required to surmount additional hurdles. In any action under § 43(a), the plaintiff must prove (1) that the mark is distinctive as to the source of the good, and (2) that there is a likelihood of confusion between its good and the defendant’s. See Samara Bros., 529 U.S. at 210, 120 S.Ct. 1339. Where the mark is a word, symbol or even product packaging, the plaintiff may prove distinctiveness by showing either that the “intrinsic nature” of the mark serves to identify a particular source (what is known as “inherent distinctiveness”) or that “in the minds of the public, the primary significance of [the mark] is to identify the source of the product rather than the product itself’ (what is known as “acquired distinctiveness” or “secondary meaning”). Id. at 210-11, 120 S.Ct. 1339. The product design plaintiff, however, must always make the second, more difficult showing. See id. at 213-14, 120 S.Ct. 1339 (“Consumers should not be deprived of the benefits of competition with regard to the utilitarian and esthetic purposes that product design ordinarily serves by a rule of law that facilitates plausible threats of suit against new entrants based upon alleged inherent distinctiveness.”).

Moreover, even a showing of secondary meaning is insufficient to protect product designs that are overbroad or “generic” — “those that *refe[r] to the genus of which the particular product is a species’.” Jeffrey Milstein, 58 F.3d at 32, 33 (quoting Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753). This check on monopoly rights limits all marks, but for two reasons it is particularly important in cases of product design. “[F]irst, ‘overextension of trade dress protection can undermine restrictions in copyright and patent law that are designed to avoid monopolization of products and ideas.’” Landscape Forms, 113 F.3d at 380 (quoting Jeffrey Milstein, 58 F.3d at 32). Patent and copyright law bestow limited periods of protection, but trademark rights can be forever. See Stormy Clime Ltd. v. ProGroup, Inc., 809 F.2d 971, 977-78 (2d Cir.1987). “ ‘[Second, just as copyright law does not protect ideas but only their concrete expression, neither does trade dress law protect an idea, a concept, or a generalized type of appearance.’ ” Landscape Forms, 113 F.3d at 380 (quoting Jeffrey Milstein, 58 F.3d at 32;) cf. Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 349-50, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (noting that the distinction between ideas and expression in copyright law “assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a *116work”). Product design is driven primarily by the usefulness or aesthetic appeal of the object; trade dress protection for product design therefore entails a greater risk of impinging on ideas as compared with protection of packaging or labeling.

A final doctrinal hurdle is the congressionally-imposed requirement that a plaintiff prove that an unregistered trade dress is “not functional.” See Trademark Amendments Act of 1999 § 5, Pub.L. 106-43 (August 5,1999), codified at 15 U.S.C.A. § 1125(a)(3) (West Supp.2001). (Prior to the congressional directive, this element was an affirmative defense in this circuit. See, e.g., Jeffrey Milstein, 58 F.3d at 31.) “ ‘[A] product feature is functional, and cannot serve as a trademark, if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.’ ” TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23,-, 121 S.Ct. 1255, 1261, 149 L.Ed.2d 164 (2001) (quoting Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995)) (other internal quotation marks omitted). And in cases involving an aesthetic feature, the dress is also functional if the right to use it exclusively “ ‘would put competitors at a significant non-reputation-related disadvantage.’ ” TrafFix Devices, 121 S.Ct. at 1261 (quoting Qualitex Co., 514 U.S. at 165, 115 S.Ct. 1300). Thus, the nonfunctionality requirement “protects competition even at the cost of potential consumer confusion.”5 Landscape Forms, 113 F.3d at 379-380.

The test of nonfunctionality in trade dress claims that are based on product design is even more critical than in trade dress claims based on packaging, because a monopoly right in the design of the product itself is more likely to preclude competition. See Restatement (Third) of Unfair Competition § 16 cmt.b at 159 (“[T]he competitive interest in copying product designs is more substantial than in the case of packaging, containers, labels, and related subject matter.”). As with the overbreadth element, “[rjigorous application” of the requirement of nonfunctionality is necessary “to avoid undermining the carefully circumscribed statutory regimes for the protection of useful and ornamental designs under federal patent and copyright law.” Id. § 16 cmt.b at 158.

A plaintiff such as Yurman may seek trade dress protection for an entire product line, by establishing that the “overall look” in each separate product is “consistent.” Walt Disney Co. v. Good-Times Home Video Corp., 830 F.Supp. 762, 766 (S.D.N.Y.1993). But for obvious reasons, concern for protecting competition is in that context particularly “acute.” Landscape Forms, 113 F.3d at 380; see id. (“[A] claim of trade dress covering an array of items is likely to be broader than one for an individual product’s design.”).

For the reasons stated below, we hold that a plaintiff seeking to protect its trade dress in a line of products must articulate the design elements that compose the trade dress. Although we announced the articulation requirement in the context of whether a plaintiff had satisfied the test for “inherent distinctiveness” — which is no longer at issue in product design eases — we think it applies with equal or greater force to any case in which a plaintiff seeks protection for a line of products. It is too easy for the question of design and configuration (“overall look”) to *117degenerate into a question of quality, or beauty, or cachet. Thus, the “focus on the overall look of a product [or products] does not permit a plaintiff to dispense with an articulation of the specific elements which comprise its distinct dress.” Landscape Forms, 113 F.3d at 381 (emphasis added).

First, without a specification of the design features that compose the trade dress, different jurors viewing the same line of products may conceive the trade dress in terms of different elements and features, so that the verdict may be based on inconsistent findings.

Second, no juror can evaluate secondary meaning, overbreadth, or nonfunctionality without knowing precisely what the plaintiff is trying to protect: “[w]ithout such a precise expression of the character and scope of the claimed trade dress, ... courts will be unable to evaluate how unique and unexpected the design elements are in the relevant market.” Landscape Forms, 113 F.3d at 381.

Third, “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 seeks protection for an unprotectible style, theme or idea.” Landscape Forms, 113 F.3d at 381. The identification of design elements that compose the asserted trade dress will thus assist in winnowing out claims that are overbroad as a matter of law. See Jeffrey Milstein, 58 F.3d at 33 (“The level of generality at which a trade dress is described, as well as the fact that a similar trade dress is already being used by manufacturers of other kinds of products, may indicate that the dress is no more than a concept or idea to be applied to particular products.”) (emphasis added). We would not have been able to decide whether the trade dress claimed in Jeffrey Milstein was generic if the plaintiff had not proffered a description of what he sought to protect. See id. at 29, 33 (finding overbroad a trade dress asserted by a greeting card company and described as glossy “photographs die cut to the shapes of the objects depicted on the cards” with blank interiors, wrapped in a cellophane package).

Fourth, “[c]ourts will ... be unable to shape narrowly-tailored relief if they do not know what distinctive combination of ingredients deserves protection.” Landscape Forms, 113 F.3d at 381. This case is itself a good example. See Yurman Design, 93 F.Supp.2d at 466 (Yurman’s “inability to articulate the trade dress ... poses significant problems for the Court in issuing an injunction”). And if a court is unable to identify what types of designs will infringe a trade dress, how is a competitor in the jewelry business to know what new designs would be subject to challenge by Yurman? See Samara Bros., 529 U.S. at 214, 120 S.Ct. 1339 (noting that “Competition is deterred ... not merely by successful suit but by the plausible threat of a successful suit”).

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. The trade dress of works that are decorative or artistic may be harder to capture in words, and may need descriptions more broadly framed, or may need drawings; but the party seeking protection must nonetheless be able to point to the elements and features that distinguish its trade dress. Pressed by PAJ on appeal to provide some description of its trade dress, Yurman produced the following: “the artistic combination of cable [jewelry] with other elements.” Appellee’s Brief 33. But the word “artistic” simply begs a question; and unless Yurman seeks protection for *118cable itself, the jewelry must be supposed to combine cable “with other elements.” This articulation is altogether too broad to be a protectable, source-identifying expression. Cf. Jeffrey Milstein, 58 F.3d at 33 (concluding that “a trade dress described as consisting solely of die-cut photographs would simply ‘refe[r] to the genus of which the particular product is a species.’ ” (quoting Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753)). Yurman’s inability to articulate its trade dress at a lower level of generality is not altogether surprising, given (1) that there are 18 different Yur-man pieces in the product line it seeks to protect (eight rings, seven bracelets, and three pairs of earrings), four of which the jury found to be separately copyrightable; and (2) Yurman’s concession that the pieces are composed exclusively of elements commonly used in the jewelry industry. Appellee’s Brief at 17-19. A unique combination of elements may make a dress distinctive, but “the fact that a trade dress is composed entirely of commonly used or functional elements might suggest that the dress should be regarded as unprotectible or ‘generic,’ to avoid tying up a product or marketing idea.” Jeffrey Milstein, 58 F.3d at 32.

Because Yurman failed to identify the specific elements of its trade dress, see Yurman Design v. PAJ, Inc., 93 F.Supp.2d 449, 466 (S.D.N.Y.2000) (noting that Yurman failed “to articulate the trade dress”), PAJ’s motion for judgment as a matter of law should have been granted. In sum, we hold that a plaintiff asserting that a trade dress protects an entire line of different products must articulate the specific common elements sought to be protected. Accordingly, we reverse the judgment against PAJ on the Lanham Act claim.

Ill

The district court construed Yurman’s state law unfair competition claim as requiring (among other elements) that the firm succeed on its trade dress claim. See Trial Tr. 1116 (“For Yurman to succeed on the New York State claim ... it has the burden of establishing ... that it had a protected trade dress claim”); Yurman Design v. PAJ, Inc., 93 F.Supp.2d 449, 462-63 (S.D.N.Y.2000) (Yurman’s state law claim “virtually tracked its Lanham Act claim”). Yurman did not challenge that jury instruction (and does not question it on appeal). Therefore, our reversal of the judgment against PAJ on the trade dress claim requires reversal of the judgment against PAJ on the unfair competition claim.

CONCLUSION

We affirm the judgment of liability and damages on the copyright claims; we reverse the judgment on the trade dress claim and on the state law unfair competition claim. Our disposition of the trade dress and unfair competition claims moots the cross-appeal, which only concerned attorneys’ fees and damages on those claims. Each party shall bear its own costs on this appeal.

DUBINA, Circuit Judge:

Plaintiff-Appellant Dippiri Dots, Inc. (“DDI”) brought suit against Defendants Appellee Frosty Bites Distribution, LLC (“FBD”) alleging trade dress infringement of DDI’s product design and logo design, both in violation of the Lanham Act, 15 U.S.C. § 1125. The district court granted summary judgment in favor of FBD on both claims. For the reasons that follow, we affirm the judgment of the district court.

I. BACKGROUND

A. Facts

Plaintiff DDI markets and sells a brightly-colored flash-frozen ice cream product, called “dippiri dots,” consisting of free flowing small spheres or beads1 of ice cream. Curtis Jones, DDI’s founder, applied for and received Patent No. 5,126,156 (“Patent ’156”) for the method DDI uses to make dippiri dots. Patent ’156 contains six steps: (1) preparing an alimentary ice cream composition for freezing, (2) dripping said composition into a freezing chamber, (3) freezing said composition into beads, (4) storing said beads at a temperature at least as low as -20° F so as to maintain said beads free flowing for an extended period of time, (5) bringing said beads to a temperature between substantially -10° F and -20° F prior to serving, and (6) serving said beads for consumption at a temperature between substantially - 10° F and -20° F so that the beads are free flowing when served.2 DDI is the exclusive licensee of Patent T56.

DDI primarily sells its dippiri dots from colorful kiosks or stands at amusement parks, sporting venues, and shopping malls. To identify itself at these locations, DDI has a distinctive logo made up of an oval of blue, yellow, and pink spheres surrounding the product name, “dippiri dots,” in blue letters. Below this oval of spheres *1201is a tag line touting dippin’ dots as the “Ice Cream of the Future.”

Defendant FBD makes and sells a competing brightly-colored flash-frozen ice cream product, called “frosty bites,” consisting of mostly small popcorn-shaped, along with some spherical-shaped, ice cream bites. FBD creates its product by streaming and dripping an ice cream solution into liquid nitrogen where it freezes and forms beads and clusters of frozen ice cream. The frozen product then passes through a “cluster buster,” where the clusters are broken down into smaller pieces. The product then moves through a system of conveyor belts, further breaking the ice cream into small beads and popcorn-like clusters.

FBD principally sells its frosty bites from booths and kiosks. To identify itself, FBD has a distinctive logo consisting of an ice-like background upon which the words “Frosty Bites” are written in blue letters shadowed in pink. The “o” in the word “Frosty” is the torso of a cartoon caricature of a portly penguin holding a cup of yellow, green, blue, and red nuggets of ice cream. Below the words is a tag line touting frosty bites as “The Ultimate Ice Cream Sensation!”.

In the Fall of 1999, several of DDI’s retail dealers secretly started the FBD business while still under contract with DDI to sell dippin’ dots at various locations.3 On March 16, 2000, eight of these dealers terminated their contracts with DDL The following day, without changing locations, they began selling their frosty bites under the “Frosty Bites” logo.

B. Procedural History

DDI filed suit against FBD alleging infringement of DDI’s trade dress (1) in the form of its unique, flash-frozen ice cream product, and (2) in the form of its unique logo design, both in violation of the Lan-ham Act, 15 U.S.C. § 1125.4 FBD moved for summary judgment.

The district court granted FBD’s motion for summary judgment finding that (1) DDI’s product design — small, predominantly separated colored beads or pieces of ice cream — is functional and therefore not subject to trade dress protection, and (2) DDI’s and FBD’s logos are so dissimilar that, as a matter of law, DDI cannot prove any likelihood of consumer confusion as to the source of the products. In re Dippin’ Dots Patent Litig., 249 F.Supp.2d 1346, 1373-74 (N.D.Ga.2003). DDI timely filed this appeal.

II. STANDARDS OF REVIEW

This court reviews a grant of summary judgment de novo, applying the same legal standards that governed the district court. Levinson v. Reliance Standard Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir.2001). Summary judgment is appropriate when “there is no genuine issue as to any mate*1202rial fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “[W]e review the facts and all reasonable inferences in the light most favorable to the non-moving party.” Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir.2001).

III. ISSUES

1. Whether DDEs product design is functional and therefore not subject to trade dress protection.

2. Whether a reasonable likelihood of confusion exists between DDI’s logo and FBD’s logo.

IV. ANALYSIS

Section 43(a) of the Lanham Act states that

(1) Any person who, on or in connection with any goods or services, ... uses in commerce any word, term, name, symbol, or device, ... or any false designation of origin, ... which

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, ... of such person with another person, ...

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1).

A. Trade dress infringement of DDLs product design

Section 43(a) creates a federal cause of action for trade dress infringement. AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531, 1535 (11th Cir.1986). “The term ‘trade dress’ refers to the appearance of a product when that appearance is used to identify the producer.” Publications Int’l, Ltd. v. Landoll, Inc., 164 F.3d 337, 338 (7th Cir.1998). “ ‘Trade [d]ress’ involves the total image of a product and may include features such as size, shape, color ..., texture, graphics, or even particular sales techniques.” AmBrit, 812 F.2d at 1535 (internal quotation omitted). In order to prevail on this claim for trade dress infringement under § 43(a), DDI must prove that (1) the product design of the two products is confusingly similar; (2) the features of the product design are primarily non-functional; and (3) the product design is inherently distinctive or has acquired secondary meaning. Epic Metals Corp. v. Souliere, 99 F.3d 1034, 1038 (11th Cir.1996); see also 15 U.S.C. § 1125(a)(3) (“[T]he person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.”); TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 29, 121 S.Ct. 1255, 1259, 149 L.Ed.2d 164 (2001) (stating that “trade dress protection may not be claimed for product features that are functional”). “[A]s all three elements are necessary for a finding of trade dress infringement, any one could be characterized as threshold.” Epic Metals, 99 F.3d at 1039. Because we conclude that DDI has not met its burden of establishing the non-functionality of its product design,5 we decline to address the other two elements of the claim.

“The functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm’s reputation, from instead inhibiting legitimate competition by allowing a producer *1203to control a useful product feature.” Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 164, 115 S.Ct. 1300, 1304, 131 L.Ed.2d 248 (1995); see also In re Morton-Norwich Prods., Inc., 671 F.2d 1332, 1336 (C.C.P.A.1982) (“This requirement of ‘nonfunctionality’ ... has as its genesis the judicial theory that there exists a fundamental right to compete through imitation of a competitor’s product, which right can only be temporarily denied by the patent or copyright laws.”). “Functional features are by definition those likely to be shared by different producers of the same product and therefore are unlikely to identify a particular producer.” Landoll, 164 F.3d at 340. “[TJhese features cannot be appropriated; otherwise, competitors would be prevented from duplicating the new product even to the extent permitted by the branches of the law of intellectual property that protect innovation rather than designations of source.” Id.

“The line between functionality and non-functionality is not ... brightly drawn.” Epic Metals, 99 F.3d at 1039 (internal quotations omitted). Nonetheless, two tests exist for determining functionality. See id. Under the first test, commonly referred to as the traditional test, “ ‘a product feature is functional ... if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.’ ” TrafFix, 532 U.S. at 32, 121 S.Ct. at 1261 (quoting Qualitex, 514 U.S. at 165, 115 S.Ct. at 1304). Under the second test, which is commonly called the competitive necessity test and generally applied in cases of aesthetic functionality, “a functional feature is one the ‘exclusive use of [which] would put competitors at a significant non-reputation-related disadvantage.’ ” Id. (quoting Qualitex, 514 U.S. at 165, 115 S.Ct. at 1304). Where the design is functional under the traditional test, “there is no need to proceed further to consider if there is a competitive necessity for the feature.” Id. at 33, 121 S.Ct. at 1262.

The features of product design that we must analyze in this case are the size, color, and shape of dippin’ dots. DDI argues that the district court erred because it did not consider the functionality of DDI’s product design as a whole, but rather erroneously analyzed each element independently. See AmBrit, 812 F.2d at 1538 (stating that a court should consider the totality of the trade dress features).6 DDI mischaracterizes the district court’s analysis. As this court has stated, “[a]l-though we have described the elements of the [products] that are [dissimilar, we are not making a comparison of individual elements. Rather, we are explaining why the overall impression of each [product] is [dis]similar. The district court correctly followed this same approach.” Id. at 1541, n. 48.

Furthermore, the product design of dippin’ dots in its individual elements and as a whole is functional under the traditional test.7 The color is functional *1204because it indicates the flavor of the ice cream, for example, pink signifies strawberry, white signifies vanilla, brown signifies chocolate, etc. See, e.g., Qualitex, 514 U.S. at 163, 115 S.Ct. at 1303 (explaining that “the words ‘Suntost Marmalade,’ on a jar of orange jam immediately ... signal a brand or a product ‘source’; the jam’s orange color does not do so”); Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 853, 856, 102 S.Ct. 2182, 2188-89, 72 L.Ed.2d 606 (1982) (concluding that district court did not err in finding that colors of certain prescription drugs were functional because, inter alia, many patients associated color with therapeutic effect); Warner Lambert Co. v. McCrory’s Corp., 718 F.Supp. 389, 396 (D.N.J.1989) (finding that in the mouthwash field, an amber colored liquid signifies a medicinal-tasting product, red signifies a cinnamon flavor, blue signifies peppermint, and green signifies mint). The district court took judicial notice of the fact that color indicates flavor of ice cream. DDI argues that such judicial notice was improper. We disagree.

Judicial notice is a means by which adjudicative facts not seriously open to dispute are established as true without the normal requirement of proof by evidence. Fed.R.Evid. 201(a) and (b); see also Fed.R.Evid. 201(a) advisory committee’s note (explaining that it is proper to take judicial notice of facts with a “high degree of indisputability” that are “outside the area of reasonable controversy”). Adjudicative facts are facts that are relevant to a determination of the claims presented in a case. Id.

One category of adjudicative facts subject to judicial notice (and the only category relevant in this case) is facts that are “generally known within the territorial jurisdiction of the trial court.” Fed.R.Evid. 201(b). Such judicially-noticed facts are of breathtaking variety. See, e.g., Friend v. Burnham & Morrill Co., 55 F.2d 150, 151-52 (1st Cir.1932) (noting the method for canning baked beans in New England); Seminole Tribe of Fla. v. Butterworth, 491 F.Supp. 1015, 1019 (S.D.Fla.1980), aff'd, 658 F.2d 310 (5th Cir.1981) (noting that bingo is largely a senior citizen pastime); First Nat’l Bank of South Carolina v. United States, 413 F.Supp. 1107, 1110 (D.S.C.1976), aff'd, 558 F.2d 721 (4th Cir.1977) (noting that credit cards play vital role in modern American society); Carling Brewing Co. v. Philip Morris, Inc., 277 F.Supp. 326, 330 (N.D.Ga.1967) (noting that most establishments that sell beer also sell tobacco products); Colourpicture Publishers, Inc. v. Mike Roberts Color Prods., Inc., 272 F.Supp. 280, 281 (D.Mass.1967), vacated on other grounds, 394 F.2d 431 (1st Cir.1968) (noting that calendars have long been affixed to walls by means of a punched hole at the top of the calendar).

A court may take judicial notice of appropriate adjudicative facts at any stage in a proceeding, including at the summary judgment stage. See Fed.R.Evid. 201(f). While a court has wide discretion to take judicial notice of facts, see Fed.R.Evid. *1205201(c), the “taking of judicial notice of facts is, as a matter of evidence law, a highly limited process.” Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir.1997). “The reason for this caution is that the taking of judicial notice bypasses the safeguards which are involved with the usual process of proving facts by competent evidence in district court.” Id. In order to fulfill these safeguards, a “party is entitled ... to an opportunity to be heard as to the propriety of taking judicial notice.” Fed.R.Evid. 201(e).

In this case, the district court took judicial notice of the fact that color is indicative of flavor in ice cream. This fact is adjudicative in nature and is generally known among consumers.8 In addition, the district court specifically questioned DDI’s counsel regarding the propriety of taking judicial notice of the fact:

THE COURT: — -would you agree that I could take judicial notice that chocolate ice cream is, generally speaking, brown, vanilla is white, strawberry is pink?

[COUNSEL]: I think you could do that, I think you could, sir, but I think it would be appropriate to acknowledge that sometimes it’s not. Chocolate can be white. I mean, that’s not an uncommon occurrence. Certainly with M&M’s, chocolate comes sometimes in a blue color.

THE COURT: I’m just talking about ice cream.

[COUNSEL]: Yes, sir.

THE COURT: Ice cream is, generally speaking, chocolate is brown, vanilla is white, and strawberry is pink.

[COUNSEL]: That’s correct, sir, but it’s not necessarily so.

[R. Vol. 326 at 43.] Therefore, the district court properly took judicial notice of the fact that the color of ice cream is indicative of its flavor. Likewise, we, who also questioned DDI’s counsel at oral argument regarding the propriety of taking judicial notice, take judicial notice of the fact that color of ice cream is indicative of flavor.9 *1206Accordingly, we conclude that color is functional in this case because it is essential to the purpose of the product and affects its quality.

Size is also functional in this case because it contributes to the product’s creamy taste, which would be different in a larger “dot.” Plaintiff produced materials that emphasized how the quick freezing of tiny round beads was crucial to the taste and consistency of the product because the Patent ’156 method of freezing tiny beads reduced the number of ice crystals in the product. [R. Vol. 249 Ex. C ¶ 4; R. Vol. 168 Ex. 3.] It necessarily follows that larger pieces of ice cream, which would take longer to freeze, would have increased ice crystals, thus affecting the creamy quality of the finished product. This is further evidenced by DDI founder Jones’s Declaration of Commercial Success, submitted to the Patent Office, which emphasized dippin’ dots’ superior characteristics and benefits that are produced by using the Patent ’156 method to create small pieces of ice cream. [R. Vol. 249 Ex. C ¶ 4.] These superior characteristics and benefits include the better taste and texture of dippin’ dots, their easy dispensability, and the novel way in which they are consumed. [R. Vol. 249 Ex. C ¶ 4.] In addition, several documents from the Patent T56 application denote the preferable size of the beads in specific millimeter measurements. [R. Vol. 168 Ex. 3.]

Likewise, the shape of dippin’ dots is functional because dripping the ice cream composition into the freezing chamber, as described in Patent ’156, creates a “bead” that facilitates the product’s free flowing nature. [R. Vol. 245 at 160-61.] Jones testified to this, stating he experimented with different procedures in order to create “a uniform bead” [R. Vol. 245 at 150],10 and that the beaded shape of dippin’ dots is a result of the method enunciated in Patent ’156 [R. Vol. 245 at 158]. Moreover, a DDI product brochure states that the spherical shape is a result of the Patent 156 process and allows the “quick, yet even freeze that is so important to the taste and consistency of the product.” [R. Vol. 245 at 207.]

Based on our review of the record and dippin’ dots’ individual elements, we conclude that the totality of the dippin’ dots design is functional because any flash-frozen ice cream product will inherently have many of the same features as dippin’ dots. See Landoll, 164 F.3d at 342 (stating that when each of the elements is functional, “[i]f the product nevertheless presentís] a distinctive appearance, that appearance would be eligible for legal protection as trade dress unless it [is] the only way the product [can] look, consistent with its performing each of the product’s functions optimally”) (emphasis added). Therefore, DDI’s product design as a whole is essen*1207tial to its purpose and affects its quality. Accordingly, it is functional under the traditional test, and not subject to trade dress protection.

Lastly, DDI argues that because Patent ’156 does not specify color or size,11 these elements cannot be functional. DDI’s argument is unavailing. The Supreme Court held in TrafFix that a “utility patent is strong evidence that the features therein claimed are functional.” TrafFix, 532 U.S. at 29, 121 S.Ct. at 1260. It did not, however, conclude the inverse, i.e. that the absence of such features in the patent is strong evidence that the features are not functional. Nonetheless, even if this inverse conclusion were the law, the outcome would remain the same in this case because “features are deemed functional until proved otherwise by the party seeking trade dress protection.” Id. at 30, 121 S.Ct. at 1260. DDI has not met its burden regarding non-functionality.

After a careful review of the record, we conclude that DDI’s product design is functional as a whole and in its individual elements. To hold otherwise runs counter to intellectual property law because it would give DDI “a monopoly more effective than that of the unobtainable patent.” See Morton-Norwich, 671 F.2d at 1337. “It is the province of patent law, not trademark law, to encourage invention by granting inventors a monopoly over new product designs or functions for a limited time.” Qualitex, 514 U.S. at 164, 115 S.Ct. at 1304. Therefore, DDI’s product design is not subject to trade dress protection. Accordingly, summary judgment in favor of FBD was proper.

B. Trade dress infringement of DDI’s logo

“The touchstone test for a violation of § 43(a) is the likelihood of confusion resulting from the defendant’s adoption of a trade dress similar to the plaintiffs.” AmBrit, 812 F.2d at 1538 (internal quotations omitted).

In determining whether a likelihood of confusion exists, the fact finder evaluates a number of elements including [the following seven factors]: the strength of the trade dress, the similarity of design, the similarity of the product, the similarity of retail outlets and purchasers, the similarity of advertising media used, the defendant’s intent, and actual confusion. The issue of likelihood of confusion is not determined by merely analyzing whether a majority of the subsidiary factors indicates that such a likelihood exists. Rather, a court must evaluate the weight to be accorded the individual factors and then make its ultimate decision. The appropriate weight to be given to each of these factors varies with the circumstances of the case.

Id. (internal citations omitted).

DDI argues that the district court erred because it considered only the similarity of the designs rather than all seven factors. We agree. The “extent to which two marks are confusingly similar cannot be assessed without considering all seven factors to ensure that the determination is made in light of the totality of the circumstances.” Wesco Mfg., Inc. v. Tropical Attractions of Palm Beach, Inc., 833 F.2d 1484, 1488-89 (11th Cir.1987) (holding that the court committed reversible error when it “focused solely on the degree of visual similarity between the two marks”).

However, a “district court’s failure to consider all the factors relevant to the issue of whether two marks are confusingly similar does not necessarily *1208constitute reversible error.” Id. at 1489. Due to the applicable de novo standard of review in this case, this court may analyze the remaining six factors. After reviewing the record in the light most favorable to DDI, as the non-movant, we conclude that the remaining six factors all weigh in favor of DDI.12 Nonetheless, we conclude that no reasonable jury could find that the two logos are confusingly similar because the lack of visual similarity between the two designs is overwhelming.13 See AmBrit, 812 F.2d at 1538 (stating that “a court must evaluate the weight to be accorded the individual factors and then make its ultimate decision”). Therefore, summary judgment in favor of FBD was proper.

DDI further argues that the district court erred because it evaluated the logos too closely. DDI relies on AmBrit to support its argument that the district court should have considered in its analysis of the logos “the actual sales environment with the typical consumers” [Appellant’s Br. at 3], to wit, 8-18 year old impulse ice cream buyers. Because these “typical consumers” do not closely evaluate the logos when they make their impulse purchases, the district court, according to DDI, erred when it evaluated the logos closely.

This court stated in AmBrit that

a court may not view trade dress in a vacuum. Rather, a court must consider how the trade dress would function in the actual market place. Ice cream novelties are impulse items ... sold ... to hurried shoppers. When viewed in this context, the general similarity of the design of the trade dress of the two products is a[ ] ... strong[ ] indication of the existence of likelihood of confusion.

AmBrit, 812 F.2d at 1541 (involving competing trade dress packages that were both 3x3 inch panels of silver, white, and blue, depicting a polar bear on all fours, with block lettering, and sold in the same locations) (emphasis added). In the logos at issue here, however, there is no “general similarity.” DDI repeatedly refers to the “subtle visual differences” in the two logos. [Appellant’s Br. at 10.] The differences, however, are anything but “subtle.” In fact, the two logos are overwhelmingly *1209dissimilar, even upon a quick and cursory viewing in the impulse buying market. Notwithstanding that both logos are “colorful [and] fanciful” [Appellant’s Br. at 12], the two logos are so different that no reasonable jury could find that even a hurried 8-18 year old impulse shopper could confuse them. Accordingly, summary judgment in favor of FBD was proper.

V. CONCLUSION

FBD’s usurpation of DDI’s business may have been immoral or unethical, but in the absence of a non-compete clause in the applicable contracts, it was not illegal. See, e.g., Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 157, 109 S.Ct. 971, 981, 103 L.Ed.2d 118 (1989) (“The law of unfair competition has [as] its ... focus ... the protection of consumers [from confusion as to source], not the protection of producers as an incentive to protect innovation.”); Epic Metals, 99 F.3d at 1042 n. 20 (finding no trade dress infringement notwithstanding that defendant copied plaintiffs product through “faithless malfeasance ... while purporting to be its agent” because “public policy favors competition by all fair means, and that encompasses the right to copy, ... except where copying is lawfully prevented by a copyright or patent”); see also Landoll, 164 F.3d at 343 (“[Trademark and trade dress law do not protect originality; they protect signifiers of source.”). DDI wants to preclude FBD from competing in the flash-frozen ice cream market, but it cannot do so by claiming trade dress infringement on its functional product design and overwhelmingly dissimilar logos. For the foregoing reasons, we affirm the district court’s grant of summary judgment in favor of FBD.

AFFIRMED.