OPINION AND ORDER

I. INTRODUCTION

Luv ri Care, Ltd. and Admar International, Inc. (collectively, “LNC”) bring this infringement action against Mayborn USA, Inc. (“Mayborn”). LNC alleges that its no-spill drinking cup design patent and corresponding trade dress are infringed by Maybom’s Tommee Tippee (“TT”) Sippy Cup, and also claims unfair competition under New York state law. Mayborn now moves for summary judgment. For the reasons set forth below, summary judgment is denied.

II. BACKGROUND

LNC sells sippy cups for children in the United States and internationally under the NUBY brand name.1 Admar Interna*638tional, Inc. owns Luv ri Care and the interest in its trademarks and trade dress.2 In this action, LNC is alleging infringement of its D634,439 design patent (“the '439 patent”),3 which claims “the ornamental design of a drinking cup top” and contains five drawing sheets.4 Mayborn distributes the accused cup,5 which has a star around the air valve and ridges around the spout.6 The '439 patent has no star and no ridges.7 Both the '439 patent’s and TT cup’s lids are transparent.8

The '439 patent is a continuation of an earlier design patent, D6T7,465 (“the '465 patent”),9 which is a continuation of a utility patent, 10/536,106 (“the '106 application”),10 which is currently pending.11 However, the '439 patent claims priority directly from the '106 application.12 The '106 application describes the entirety of a drinking cup.13 Mayborn asserts that the “claims of the '106 application generally describe two embodiments, each that employ a no-spill valve.”14 LNC, however, disputes this statement and asserts that “the claims in their present form are directed to a variety of features of no-spill drinking products.”15 The inventor of the '106 application testified that the cup top could be designed in myriad ways without sacrificing functional viability.16

Both parties cite numerous examples of prior art. Mayborn cites to U.S. Patent Numbers 6,102,245 (“the '245 patent”),17 D457,778,18 D460,322,19 6,321,931 (“the '931 *639patent”),20 D387,247,21 5,988,425,22 and U.S. Patent Application Number WO 03/101261.23 LNC cites over twenty-five examples of prior art: D421,878, D364,314, D551,904, D476,850, D495,558, 5,079,013, 6,705,485, D310,567, D327,818, D364,316, D479,946, D419,029, D385,748, D327,393, D315,213, D452,415, D364,315, D559,662, D429,443, D434,944, D415, 654, 4,946,062, D579,722, D387,621, 6,230,923, D450,535, WO 03/070150, and U.S.2002/0066741 Al.24 The report of Cooper C. Woodring, plaintiffs’ expert, identifies Japanese Patent Number D2000-37405 (“JP 129061”) as the prior art design most similar to the '439 patent and the TT cup.25

LNC alleges trade dress infringement of its soft-top.26 Mayborn alleges that the entirety of the soft-top design is claimed by utility patent U.S. 6,994,225 B2 (“the '225 patent”).27 The '225 patent is not in the direct priority chain of the '439 patent.28 By 2006, “other companies were selling soft top cups with the very same features that LNC alleges are protectable trade dress.”29 LNC’s soft-top was involved in another trade dress infringement action, Luv N’ Care, Ltd. v. Walgreen Co.30 LNC also asserted the '439 patent in Luv N’ Care, Ltd. v. Regent Baby Products Corp.31

LNC’s soft-top products have achieved significant sales success and consumer popularity.32 LNC sold 54,515,386 cups in the United States from 2004-2007.33 LNC has received awards from Wal-Mart Stores, Inc. (“Walmart”)34 and unsolicited online consumer accolades.35 LNC has benefitted from its own extensive advertising efforts as well as publicity provided by retailers such as Walmart.36

III. PROCEDURAL HISTORY

.The Complaint in this case was filed on April 11, 2011,37 LNC originally claimed: (1) design patent infringement under section 271 of Title 35 of the United States Code; (2) Lanham Act trade dress infringement and unfair competition under *640section 1125(a) of Title 15 of the United States Code; (3) unfair competition under New York common law; and (4) trademark dilution under New York General Business Law section 360-1.38

On February 27, 2012, Mayborn moved for Summary Judgment on all claims.39 However, LNC withdrew the New York trademark dilution claim in its opposition brief.40 I now consider the motion for summary judgment on the remaining claims.

IV. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “ ‘A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the nonmóvánt’s favor.’”41 “‘A fact is material when it might affect the outcome of the suit under governing law.’ ”42

In a summary judgment setting, “the moving party bears the burden of showing that he or she is entitled to summary judgment.”43 “When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence ... on an essential element of the nonmovant’s claim.”44 In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. The non-moving party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ ”45 and cannot “ ‘rely on conclusory allegations or unsubstantiated speculation.’ ”46

In deciding a motion for summary judgment, a court must “ ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ”47 However, “ ‘[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’ ”48 “ ‘The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.’ ”49

*641V. APPLICABLE LAW

A. Design Patent Infringement

“Determining whether a design patent is infringed requires (1) construction of the patent claim, and (2) comparison of the construed claim to the accused product.”50 In construing a design patent, “it may be unwise to attempt a full description of the claimed design, [but] a court may find it helpful to point out, either for a jury or in the case of a bench trial by way of describing the court’s own analysis, various features of the claimed design as they relate to the accused design and the prior art.”51 “Design patents are typically claimed as shown in drawings, and claim construction must be adapted to a pictorial setting.”52

A fact-finder applies the “ordinary observer” test in determining whether a design patent has been infringed:

[I]f, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive such an observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.53

In its en banc decision in Egyptian Goddess, Inc. v. Swisa, Inc., the Federal Circuit rejected the “points of novelty” test, holding that the ordinary observer test is the “sole test for determining whether a design patent has been infringed.”54 In its present formulation, the test asks if “an ordinary observer, familiar with the prior art designs, would be deceived into believing that the accused product is the same as the patented design.”55

The Federal Circuit detailed the ordinary observer analysis in Crocs, Inc. v. International Trade Commission:

When the differences between the claimed and accused designs are viewed in light of the prior art, the attention of the hypothetical ordinary observer may be drawn to those aspects of the claimed design that differ from the prior art. If the claimed design is close to the prior art designs, small differences between the accused design and the claimed design assume more importance to the eye of the hypothetical ordinary observer. The ordinary observer, however, will likely attach importance to those differences depending on the overall effect of those differences on the design. Even if the claimed design simply combines old features in the prior art, it may still create an overall appearance deceptively similar to the accused design. In that case, this court will uphold a finding of infringement.56

The ordinary observer test applies to patents that have both design and functional elements.57 “If a design includes both *642functional and ornamental features, infringement occurs if an ordinary person ‘would be deceived by reason of the common features in the claimed and accused designs which are ornamental.’ ”58 “In addition, the accused design must appropriate the novel ornamental features of the patented design that distinguish it from the prior art.”59 While it is appropriate to factor out the functional elements of a design patent in claim construction, that process should not “convert the overall infringement test to an element-by-element comparison.”60 “[T]he deception that arises is a result of similarities in the overall design, not of similarities in ornamental features considered in isolation.”61

B. Trade Dress Infringement

In order to succeed on a claim of trade dress infringement under Section 43(a) of the Lanham Act, a plaintiff must demonstrate that: (1) its trade dress has acquired distinctiveness through secondary meaning;62 (2) there is a likelihood of confusion; and (3) that the trade dress is non-functional.63 “[A] probability of confusion, not a mere possibility, must be found to exist” in order to support a finding of trade dress infringement.64

“Courts in the Second Circuit look to all of the traditional Polaroid factors in analyzing a likelihood of confusion: 65 (1) the strength of plaintiffs mark; (2) the similarity of the parties’ marks; (3) the competitive proximity of the products; (4) the likelihood that the plaintiff will bridge the gap between the products; (5) actual customer confusion; (6) defendant’s intent or bad faith in adopting the mark; (7) the quality of the defendant’s product; and (8) the sophistication of consumers.66 *643None of these factors are dispositive, and the above list is not exhaustive.”67 “The application of the Polaroid test is ‘not mechanical, but rather, focuses on the ultimate question of whether, looking at the products in their totality, consumers are likely to be confused.’ ”68

C. New York State Unfair Competition

The elements of trademark infringement under New York common law mirror elements of trademark infringement under the Lanham Act. However, a plaintiff asserting an unfair competition claim under New York common law must also show that the defendant acted in bad faith.69 Proof of secondary meaning, however, is not always required.70 “[A] plaintiff must show either actual confusion or a likelihood of confusion, and there must be ‘some showing of bad faith’ on the part of the defendants.”71

D. Priority

A later-filed patent may claim the filing date of an earlier patent, if four statutory requirements are met, pursuit to Section 120 of Title 35 of the United States Code: (1) “the invention described in the new application must be disclosed ... in an application previously filed in the United States;”72 (2) the application must be filed by an inventor or inventors named in the previously filed application; (3). the application must be co-pending with the earlier application, or filed “before the patenting or abandonment of or termination of proceedings on the first application”;73 and (4) the application must contain or be amended to contain a specific reference to the earlier filed application.74

VI. DISCUSSION

A. Material Issues of Fact Exist Regarding Design Patent Infringement

LNC has raised sufficient material issues of fact to preclude a finding of summary judgment in favor of Mayborn.

1. Claim Construction

Mayborn asks this Court to “ferret out both the functional elements and the elements disclosed in the prior art.”75 This is a difficult endeavor where the patent at issue, the '439 patent, has only one short claim — “the ornamental design for a drinking cup top, as shown and described” — and is comprised of simple *644drawings.76 LNC alleges that Mayborn has copied a number of ornamental features of the '439 patent: (1) the “racetrack”-shaped spout with two long and two short sides, (2) a circular element on the product’s top, (3) the circular element and the spout offset from the center, (4) a concave scoop on the top of the spout, and (5) a transparent lid.77 Mayborn counters that each of these elements are either entirely functional or disclosed by the pri- or art.78 The '106 application discloses that the shape of the spout fits comfortably in a child’s mouth and that the location of the spout facilitates drinking.79 These arguments only demonstrate that these elements of the design of the '439 patent serve some utilitarian purposes.80 Nouri E. Hakim, the inventor of the '439 patent, stated that the spout could have been altered in many ways and the top would have remained effective.81 Hakim’s deposition suggests that the shape and location of the spout, although serving a functional purpose, may primarily be driven by design considerations.82 I find no basis to exclude these elements of the '439 patent based on functionality.83

For the other elements highlighted by LNC, Mayborn turns to the prior art, in particular the '061 and the '931 patents for examples of “sloped” transitions between the spout and the base.84 Only one example of a transparent top is provided— namely, the '425 patent. However, that patent discloses a far different overall design than the '439 patent or the TT cup. Although it has an off-center spout and circular element, the shape of the spout and the cup top are not similar. I find that the overall design of the '439 patent was not disclosed by any of the prior art. The '439 patent’s drawings disclose a specific overall visual look — a circular transparent top (a rare element in the prior art)85 combined with a specifically-shaped, off-center spout opposite a circular element over the valve.86 The claim is limited *645to what is shown in the drawings.87

2. Infringement

Mayborn argues that its TT design, which has ridges around the spout and a star on the off-center circular element creates a sufficient difference between the overall designs to warrant summary judgment.88 Mayborn asserts that other differences exist: (1) the '439 patent has a gradual rounded transition to the spout whereas the TT design has a straight transition; (2) the TT cup’s spout has a domed top whereas the '439 patent depicts a spout with a flat top; and (3) the TT cup’s spout protrudes from a lower point on the top whereas the '439 patent depicts a spout that merges smoothly into the base of the top.89 However, LNC correctly argues that the ordinary, observer test asks whether the overall designs are similar.90 In this case, the overall designs are sufficiently similar that I cannot conclude, as a matter of law, that the TT cup does not infringe the '439 patent. The shared circular transparent top, the shape and location of the spout, and the circular element opposite the spout are sufficient to support a finding that the TT design could deceive an ordinary observer conversant with the prior art.91

3. Priority

Mayborn asserts that the '439 patent claims priority through the '465 patent, — an intervening patent — that the intervening patent breaks the required chain of continuing disclosure, and that, as a result, the '439 patent cannot claim the '106 application filing date. Mayborn argues that the '439 patent is therefore invalid because it was anticipated by the '106 application.92 LNC rebuts Mayborn’s assertions with excerpts from the File Wrapper, which lists a claim of priority directly to the '106 application,93 and facts satisfying each of the requirements of 35 U.S.C. § 120. First, drawing all inferences in favor of LNC — the non-moving party — the '439 patent is sufficiently disclosed by the '106 application.94 Second, Nouri E. Hakim is undisputedly the common inventor of both the '106 application and the '439 patent.95 Third, the '106 patent application *646was filed.96 Fourth, the '439 patent contains a reference to the '106 application.97 Therefore, contrary to Mayborn’s argument,98 I cannot conclude as a matter of law that the '439 patent is anticipated by the '106 application. However, whether the '439 patent does, in fact, claim priority to the '106 application is a question of fact for a jury.99

B. Material Issues of Fact Exist Regarding Trade Dress Infringement

LNC has demonstrated material issues of fact regarding the infringement of its soft-top trade dress.

1. Secondary Meaning100

a.Advertising Expenditures

LNC’s Chairman testified that LNC has “spent extensive amounts promoting its products, including, but not limited to the products-in-suit, via advertising allowances to retailers.”101

b.Consumer Studies

LNC has not produced a consumer study.102

c.Unsolicited Media Coverage

LNC has produced evidence of unsolicited retailer promotions, as well as consumer-created internet sites, comments and fan emails.103 In addition to consumer websites,104 Walmart, Walgreens, and other chains have promoted LNC’s soft-top cups.105

d.Sales Success

LNC’s strongest factor is the commercial success of its' NUBY soft-top cups. The product is sold in “tens of thousands of retail stores” in the United States.106 Over 54.5 million products were sold in the *647U.S. from 2004-2007,107 a period during which approximately 16.8 million babies were born in the United States.108

e. Attempts to Plagiarize the Mark

For this factor, LNC relies on the previous infringement suits that have resulted from unauthorized copies of LNC’s soft-top cups.109

f. Length and Exclusivity of the Mark’s Use

If LNC experienced a period of exclusive use of the soft-top, this period was short-lived. LNC began selling soft-top cups in 2004.110 However, LNC admits that by 2006 at the latest, other companies were selling soft-top cups “with the very same features that LNC alleges are protectable trade dress.” 111

Overall, LNC has demonstrated evidence of sales success, plagiarism, and unsolicited media coverage.112 The facts presented are sufficient to raise a material issue of fact as to secondary meaning.113

2. Likelihood of Confusion

LNC has raised a material issue of fact regarding the likelihood of confusion.

a. Strength of the Plaintiffs Mark114

This factor weighs in LNC’s favor, given the sales success of the LNC soft-top,115 the consumer reaction to the product,116 and the support of retailers.117

b. Similarity of Parties’ Marks

I have already found that a material issue of a fact exists as to infringement by Mayborn, and there exists a similar overall *648look between the two soft-tops.118 However, the prominence of the NUBY name on the LNC soft-top and the signature star on the TT cups significantly decreases the likelihood of consumer confusion.119

c.Competitive Proximity120

The LNC and TT products serve the same purpose — they are no:spill baby drinking cups.121 They also serve the same market and directly compete.122

d.Bridging the Gap

In this case, where both companies already target the same consumers, there is no gap to bridge.123

e.Actual Customer Confusion

LNC does not proffer any evidence of actual customer confusion.124

f. Defendant’s Intent or Bad Faith

LNC has put forth evidence of bad faith and intent — most notably, that TT’s Head of Design “exclaimed that the prototype of the accused product looked ‘virtually identical’ ” to LNC’s.125 Additionally, according to Mayborn employees, any minor changes made after that time did not change the look of the accused product.126 Mayborn had also been a distributor of LNC prior to its loss of distributorship rights,127 which implies knowledge of the mark.128

g. Quality of Defendant’s Product

There is no indication that Mayborn’s product is inferior, and LNC does not discuss this factor.129

*649h. Sophistication of Consumers

The sippy cups at issue here are very inexpensive, and LNC asserts that customers do not spend time or effort in purchasing a sippy cup130 — a proxy argument for asserting that these customers are not sophisticated in the sippy cup market.131

Overall, the Polaroid factors weigh slightly in LNC’s favor — particularly, the strength of the mark, similarity, proximity, defendant’s intent, and sophistication of the consumers — and raise material issues of fact regarding a likelihood of confusion that preclude a finding of summary judgment.132

3. Non-functionality133

LNC has raised issues of material fact as to the non-functionality of the soft-top design. Mayborn argues that the description of the embodiments of the '225 patent indicate that the LNC soft-top is functional.134 It is appropriate to look to all parts of a utility patent when assessing functionality.135 That said, the functional elements disclosed by the '225 patent are individual components of the overall trade dress asserted by LNC — for example, a description of the spout’s orientation.136 In this case, LNC argues that the soft-top trade dress, on the whole, is not tied to the functional elements described in the '225 patent.137 There is enough uncertainty *650created by the depositions of both May-born 138 and LNC employees139 — -each suggesting that different physical forms could be used without sacrificing functionality140 —to preclude summary judgment on functionality grounds.141

C. Material Issues of Fact Exist Regarding Unfair Competition

LNC has raised issues of material fact with regard to every element of a Lanham Act trade dress infringement claim142 and presented evidence of bad faith.143 As a result, summary judgment is denied on the common law unfair competition claim.144

VII. CONCLUSION

For the foregoing reasons, Mayborn’s motion for summary judgment is denied. The Clerk of the Court is directed to close this motion (Docket No. 38). A conference is scheduled for August 23, 2012, at 4:80 p.m. in Courtroom 15C.

SO ORDERED.