Full opinion text
MEMORANDUM ORDER, FINDINGS OF FACT, AND CONCLUSIONS OF LAW ON DEFENDANTS’ MOTION FOR PERMANENT INJUNC-TIVE RELIEF MILLOY, United States Magistrate Judge. On February 18, 1998, the parties consented to proceed before a United States magistrate judge, under 28 U.S.C. § 686(c), “for the limited purpose of ruling on the motion for [a] preliminary injunction” that was filed, jointly, by Defendants PRL USA Holdings, Inc. and the Polo Ralph Lauren Corporation, d/b/a Delaware Polo Ralph Lauren Corporation (collectively “PRL” or “Defendants”). (Docket Entry # 19). An order granting limited in-junctive relief was entered on July 2, 1998. Subsequently, the parties consented to proceed before this court for all purposes, including entry of final judgment. (Docket Entry # 104). The court entertained testimony on these claims and defenses in November 1998, and heard final arguments in January 1999. Since that date, the parties have supplemented the record with additional evidence in the form of deposition transcripts, copies of all publications issued to date, and memoranda on recent case decisions. Prior to ruling, the court has reviewed all of the briefs, letter memo-randa, and exhibits submitted by the parties, including all of the transcripts/videos of depositions given by witnesses for each party. At the heart of this matter is the contention that the 1997 “re-launch” of a magazine, under the name “POLO”, by Plaintiffs Westchester Media Company, L.P. and Navasota Holding Company, L.L.C., (“Westchester” or “Plaintiffs”), will cause a likelihood of consumer confusion as to affiliation, sponsorship, or association with Defendants. In weighing these claims and defenses, the court is called upon to decide matters implicated under the first amendment to the constitution, the effect of an incontestable trademark registration, the contours of a new federal dilution statute, as well as the validity of expert opinions, including the procedures and results from competing market surveys. In making these findings, the court has scrutinized carefully each factor involved in the determination of a likelihood of confusion, the equitable and legal defenses raised, and all aspects of the relief ordered. Following that scrutiny, and based on credibility findings and the governing law, the court is persuaded, by a preponderance of the evidence, that PRL has met its burden to show a likelihood of confusion on its trademark infringement claim and that injunc-tive relief should be ordered. The explicit findings required under Rule 52 of the Federal Rules of Civil Procedure, follow this memorandum and are incorporated for all purposes. BACKGROUND On October 1, 1997, Westchester filed this declaratory judgment action against PRL, seeking a determination of its right to use “POLO ” as the title for a magazine. In response to Plaintiffs’ declaratory judgment action, PRL filed counterclaims alleging trademark infringement and dilution under the Lanham Act, codified as amended at 15 U.S.C. §§ 1114(1), 1125(a), and state law claims of unfair competition and injury to business reputation. The court has jurisdiction over the subject matter of these claims pursuant to 15 U.S.C. § 1121, 28 U.S.C. § 1338, and 28 U.S.C. § 636(c) and venue is proper in the Southern District of Texas under 28 U.S.C. § 1391. This case requires close decisions on questions of fact and law as the parties dispute the right of each to use the word “polo” in pursuing business goals. PRL, Counter-Plaintiff here, claims that West-chester Media, Counter-Defendant, has infringed its rights by use of that name and that it has diluted its distinctive mark in the process. Westchester responds that PRL’s efforts to control the use of the word, by litigation, is an overreaching attempt to extend its current rights under the law. In July 1998, this court was presented with similar issues on PRL’s request for a preliminary injunction, and limited injunctive relief was ordered. Since July 1998, Westchester has been required to distance itself from PRL, and its products, by publishing a disclaimer on the disputed magazine cover and in all of its advertising media. At the trial on the merits, and in the post trial briefs and arguments, the parties have elaborated on, and expanded, the factual underpinnings for the competing claims and defenses. As the springboard for its claims, PRL insists that, from its inception, Polo Ralph Lauren has initiated, and vigorously pursued, an advertising theme which it has deemed “aspirational”. PRL contends that through this “aspirational” style of advertising, it has consistently evoked “lifestyle images” that resonate with elegance, luxury, and distinctively American imagery. PRL complains that Westches-ter, through its current publication, has imitated and usurped that “aspirational advertising” to further its own goals at the expense of PRL’s distinctive trademark. PRL points to Westchester’s actions in hiring new editorial staff and displacing the number of articles on equestrian sports with “an abundant mix of elegant fashion, romantic travel, witty observations, [and] world-class reporting” as proof of an intent to infringe on its rights. PRL insists that this wholesale change to the original magazine is a “Big Bang” creation and no mere Darwinian step in the evolution of the periodical. Westchester responds that, on the contrary, it is simply an attempt to broaden its appeal beyond the membership of the United States Polo Association (“USPA”), and that its expansion is not tied in any way to PRL’s image. The evolution vs. revolution argument is clear; what is less clear is the impact of the disputed evidence on the determination of a likelihood of confusion. It is undeniable that polo players, team owners, and followers are likely to, be affluent and just as likely to be interested in other leisure activities. Certainly, it is safe to assume that polo enthusiasts are also interested in fashion, travel, and “world-class reporting”. Westchester is adamant that, as the official magazine for the only American polo association, it has every right to evoke the elegance and opulence that it reports is attendant to that sport. In contrasting its readership (“the real deal”), to the typical Ralph Lauren consumer, Westchester argues that PRL is attempting to use the trademark laws to trample its first amendment right to disseminate the editorial content of its choice. In addressing these arguments, the parties bring into sharp focus Justice Frankfurter’s comments in Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381 (1942). In speaking to the purpose and import of trademarks in the market setting, Justice Frankfurter stated the following: The protection of trade-marks is the law’s recognition of the psychological function of symbols. If it is true that we live by symbols, it is no less true that we purchase goods by them. A trade-mark is a merchandising short-cut which induces a purchaser to select what he wants, or what he has been led to believe he wants. The owner of a mark exploits this human propensity by making every effort to impregnate the atmosphere of the market with the drawing power of a congenial symbol. Whatever the means employed, the aim is the same- to convey through the mark, in the minds of potential customers, the desirability of the commodity upon which it appears. Once this is attained, the trade-mark owner has something of value. If another poaches upon the commercial magnetism of the symbol he has created, the owner can attain legal redress. Id. at 205, 62 S.Ct. at 1024. From the undisputed evidence, it is clear that since 1967, PRL, under its founder, Ralph Lauren, has built an image known to both national and international consumers, and it is one which encompasses diverse merchandise including fashions, accessories, home furnishings, fragrances, and other products. PRL contends that these diverse offerings are known immediately by the “Polo” name which has become famous and distinctive. (See Memorandum Order, Findings of Fact and Conclusions of Law on Defendants’ Motion for a Preliminary Injunction (“July 1998 Memorandum Order”), p. 4). Over the years, PRL has registered a number of trademarks with the United States Patent and Trademark Office (“PTO”). These registrations have been referred to as the “Polo Trademarks”, and each is detailed in the record. (Defendants’ Exhibit # 43, # 44, July 1998 Memorandum Order, p. 4). These trademark registrations are in full force and effect and a great number of them have become incontestable under the Lanham Act, codified as amended at 15 U.S.C. § 1065. PRL protects these marks through legal action when necessary. (July 1998 Memorandum Order, p. 4). Westchester is in the business of publishing magazines and, until the summer of 1997, published only specialty magazines such as “Cowboys & Indians”. Westches-ter’s general partner is Navasota, whose sole shareholder is John B. Goodman (“Goodman”). Mr. Goodman is an avid polo player and has been a member of the USPA since 1989. John Goodman currently serves on two USPA committees, as well as on the board of directors of the Museum of Polo and Hall of Fame. Mr. Goodman is also on the board of directors of the Houston Polo Club and served as its president in both 1994 and 1995. Further, Goodman is captain of the Team Isla Carroll, which is reported to be the world’s top ranked polo team, and the team that represented the United States in the international Westchester Cup tournament. (See July 1998 Memorandum Order, p. 4). On May 30, 1997, Plaintiffs purchased the assets of POLO magazine, including its trademarks, from Fleet Street Publishing Company (“Fleet Street”), and its owner, Ami Shinitzky (“Shinitzky”). (July 1998 Memorandum Order, p. 4) Those registrations, granted to Fleet Street and Ami Shinitzky in 1992, are as follows: (1) Registration No. 1,691,432 for “POLO”, a “magazine on the subject of equestrian sports and lifestyles”; (2) Registration No. 1,677,088 for a “horse and rider design” for “magazine publication services”, the design which appears on the masthead of POLO magazine; and (3) Registration No. 1,710,-894 for “POLO Life”, a “magazine dealing with equestrian sports and lifestyles.” (July 1998 Memorandum Order, p. 5). When making its original application for registration with the PTO, Fleet Street sought protection for the “POLO ” name on “the following services: equestrian magazines and periodicals”. It must be noted that the PTO examining attorney refused the application, addressing, among other reasons, that the mark “merely describes the subject matter of the applicant’s publication ... and that the Trademark Trial and Appeals Board and the courts have consistently held that marks which describe the subject matter of publications are usually descriptive under Section 2(e)(1).” (Plaintiffs’ Exhibit # 114, Bates # 03997). The examining attorney also remarked that, should the publisher choose to pursue registration, several “in-formalities” must be rectified, but she allowed the company to respond with proof of “registerability”. In so ruling, the examiner advised that, if it renewed its application, Fleet Street “may adopt the following identification of goods, if accurate: MAGAZINES ON THE SUBJECT OF EQUESTRIAN SPORTS AND LIFE STYLES”. (Plaintiffs’ Exhibit #114, Bates # 03998). Fleet Street was also required to provide a “complete issue of the publication”, rather than a reproduction of the cover only, so that “registerability” could be considered. (Id.) When the original application was filed, Fleet Street’s attorney did submit issues of the magazine which were published in March and May of 1989. (id.) In response to the PTO’s refusal, Fleet Street filed an amendment to its application refuting the contention that the mark was descriptive and declaring, by way of affidavits, that it had achieved secondary meaning. (Plaintiffs’ Exhibit # 114, Bates Number P. 04003-04006). Further, Fleet Street changed the identification of services to state that the mark was for a “magazine on the subject of equestrian sports and life styles”, (id.) Apparently, no additional proof of secondary meaning was supplied. The registration, under Section 2(f), was issued on June 3, 1992, following a second demand from the examining attorney for a complete issue of the magazine. (Plaintiffs’ Exhibit # 114, Bates Number P. 04015 & P. 004009). From 1975, until it was sold in 1997, the Fleet Street publication was a special interest magazine said to be devoted to “serious enthusiasts” of the sport of polo. (July 1998 Memorandum Order, p. 6). On April 13, 1998, Westchester’s newly acquired trademark, Registration No. 1,691,-432, for “POLO ”, a “magazine on the subject of equestrian sports and lifestyles”, became incontestable under the Lanham Act, 15 U.S.C. § 1065. (July 1998 Memorandum Order, p. 6). Westchester’s declaratory judgment action against PRL was identified, and the pertinent pleadings were provided to the PTO, before that status was conferred. PRL does not contest the validity of that registration, under 15 U.S.C. § 1063. In fact, Westchester notes, correctly, that there is no record that PRL ever objected to a magazine with that name, until the Fall of 1997, when Plaintiffs announced an intention to “relaunch” POLO magazine, and to expand that periodical’s circulation and audience. It is uncontroverted that PRL made no challenge to the three trademark registrations which the PTO granted to Ami Shin-itzky’s company. To date, PRL owns no trademark on any magazines, although it did file an application to register a mark for “Lauren”, a “general features magazine directed to lifestyles”. (July 1998 Memorandum Order, p. 6). Although that application was filed in 1993, no magazine has been published under that, or any other name by PRL, or any Ralph Lauren entity. After an exhaustive review of the law and careful examination of the evidence submitted in this matter, the conclusion is inescapable that a likelihood of confusion exists between PRL’s products and the Westchester magazine which has been published since October 1997. In short, the court is convinced that, if the periodical which is now published by Westchester under the name “Polo Players Edition”, was instead published under the name “Polo”, this suit would not have arisen. The court finds that the editorial content, distributorship, advertising, layout, and reportage in Polo Players Edition is, in essence, the continuation of Ami Shinitzky’s Polo Magazine. Based on that determination, the court finds that the “relaunch”, under Westchester, with the new, glossy format and altered editorial and advertising direction, evidences an intent to trade on the reputation and goodwill established by PRL over the last 30 years. There can be no better proof of this intent than the fact that Westchester has retained the old thematic content and readership of the original Shinitzky publication, but has now retitled it, Polo Players Edition. Surely there is no need for two different magazines if, as claimed by Westchester, the current Polo is a mere continuation of the Fleet Street periodical with an updated look and a cash infusion. With that finding, comes the harsh, but unavoidable, conclusion that permanent in-junctive relief is the only remedy feasible. That the remedy is harsh is without doubt. That Westchester has expended large sums in pursuit of its new venture is obvious, and the disappointment to its new owner is inevitable. Nevertheless, dating from the summer of 1997, the company was on notice that use of the name Polo, for the re-vamped magazine, was problematic. Further, since the preliminary injunction was entered in July 1998, West-chester has not complied faithfully with this court’s orders to distance itself from PRL, and that conduct, coupled with the discovery practices during the litigation, lends little credibility to its present assertions that a disclaimer is a sufficient remedy, and one that is not only reasonable, but required, as the least restrictive alternative under the law. For these reasons, the court comes to the inescapably harsh, but inescapable, nonetheless, conclusion that permanent injunctive relief is required. DISCUSSION Old Polo Magazine vs. New Polo Magazine The history of Ami Shinitzky’s POLO magazine is critical to this dispute. Undeniably, Mr. Shinitzky founded a magazine devoted to the equestrian sport of polo and began publishing it in 1975. Mr. Shinitzky is a polo enthusiast, a well known promoter of the sport, and a member of the USPA. His magazine was endorsed, from the very outset, as the “official publication of the USPA”. Westchester, in fact, refers to it, as the “Bible of the USPA”. That endorsement and support continues today and Mr. Shinitzky is a member of the Editorial Board of the Westchester publication. (Plaintiffs’ Exhibit # 8, # 8A; Defendants’ Exhibit # 1). When he began the magazine in 1975, Mr. Shinitzky called his publication POLO News. In October of 1976, the title was changed to POLO Magazine. That periodical, eventually called simply “POLO”, is deemed the “Old POLO Magazine” for these purposes. In 1989, Ami Shinitzky began a new venture, POLO Life, purportedly intended as an expansion of the previous publications, but with broader editorial scope and a greater emphasis on “lifestyles” than the earlier magazines. (July 1998 Memorandum Order, p. 5). It appears, however, that POLO Life was distributed only in 1989, 1990, and 1997. After its acquisition by Westchester, in 1997, Plaintiffs “relaunched” the Shinitzky magazine, still using the name “POLO”, while contemporaneously publishing a separate magazine called “Polo Players Edition”. In this action, PRL complains that the “relaunched periodical is no longer a magazine that is devoted to equestrian sports, but is instead a magazine about ‘fashion and lifestyle’ ”. The “re-launched” publication is referred to here as the “New POLO Magazine”. The first issue of the New POLO Magazine was published in October of 1997. Westchester, by then keenly aware of PRL’s objections to its publication, filed its declaratory judgment action the same month. Without detailing each contested fact, the court concludes that PRL has spent millions of dollars cultivating its Polo image and in advertising its products and services. Products bearing the PRL marks have resulted in worldwide sales of approximately seven billion dollars. These products range from a wide array of men’s and women’s apparel to home furnishings, accessories, linens, paints, and fragrances. These sales are generated from retail stores located throughout the world. (11-16-98 A.M. Tr. at 49-51; Defendants’ Exhibit # 142). Articles about PRL’s products, and Ralph Lauren himself, have been written in magazines as diverse as Time, Financial World, Town & Country, and Vanity Fair. (Defendants’ Exhibit # 37 AI; 11-16-98 A.M. Tr. at 63). PRL advertises worldwide, and it is visible in all manner of media, including newspapers, trade publications and magazines. (July 1998 Memorandum Order, p. 7). It is undisputed that, in 1997 alone, PRL ran 952 pages of advertising in such widely-circulated magazines as Elle, Vogue, Town and Country, GQ, and Cosmopolitan. (July 1998 Memorandum Order, p. 7). It is likewise undisputed that in the same year, Fleet Street/Westchester publications, including the Old and New POLO Magazines, together, produced only 778 pages of copy. (July 1998 Memorandum Order, p. 7). From 1995 through August of 1997, Fleet Street/Westchester printed approximately 2,700 articles. Of that number, 97.8% concerned the sport of polo and “equestrian matters”. Only 2.2% of those articles concerned travel, or other non-equestrian subjects. (July 1998 Memorandum Order, p. 7). The Old POLO Magazine was directed to fewer than 7,000 subscribers, most of whom were members of the USPA. Indeed, those belonging to the USPA received the magazine as a benefit of membership. (July 1998 Memorandum Order, p. 7). Core advertisers in the Old POLO Magazine offered products primarily connected to the sale, care and maintenance of horses, and other equipment integral to the sport of polo. PRL asserts that in the twenty-year history of the magazine, only 407 fashion advertisements appeared. (July 1998 Memorandum Order, p.7). Mr. Shinitzky personally negotiated the sale of Fleet Street’s POLO registrations to Westchester. In the course of those negotiations, he wrote a letter to Reid Slaughter, the first publisher of the New POLO Magazine. In the letter he stated that “Ralph Lauren’s spectacular achievement with the name POLO has helped cement the unmistakable association of the name POLO with lifestyle. Your success with Cowboys & Indians obviously puts you in a position to fully realize that.” (Letter from Shinitzky, dated April 15, 1997) [“Shinizky Letter”], (July 1998 Memorandum Order, p. 8, Defendants’ Exhibit # 63). It is not surprising that Defendants point to this as evidence that the “re-launch” of the magazine is an effort to capitalize on the “untapped potential” of that “unmistakable association”, and is an attempt to trade on PRL’s good will. (Defendants’ Exhibit # 64). But, as West-chester points out, repeatedly, and heatedly, it is also true that there is an obvious, and longstanding, association among John Goodman, polo, and the USPA. Westches-ter contends that the word “polo”, and the sport itself, have long had “meanings, images, and connotations all their own.” (July 1998 Memorandum Order, p. 8). Before the New POLO Magazine was published, Westchester sent promotional materials to potential advertisers explaining the magazine’s new direction: that is, Plaintiffs shared their hope to highlight “great stories and photography [as] the cornerstone of POLO, which is not about the sport, but rather about an adventurous approach to living life.” (Letter from Rod Hunsaker [“Hunsaker Letter”], Defendants’ Exhibit # 90). Unlike its predecessor, the new magazine is not distributed solely to USPA members, but is to be “distributed on newsstands, at hotels, resorts and clubs.” Further, in an introduction to consumers, Westchester chose to distribute promotional materials about the New POLO Magazine in the Neiman Marcus mail order catalog, known as “The Book ”. (Plaintiffs’ Exhibit # 62; Defendants’ Exhibit # 15; July 1998 Memorandum Order, p. 8-9). Westchester also chose to use fashion model Claudia Schif-fer in the cover photograph of its inaugural issue. PRL reports that only the year before, Claudia Schiffer had been its featured model in an extensive magazine advertising campaign. (Defendants’ Exhibit #41). Since that promotional mailout, West-chester has published eleven (11) editions of the magazine, from October 1997 to August 1999. In that time, the parties have each conducted a market survey to assist them in their claims and defenses, and Westchester has assembled some documentary evidence tracking its rate of success in marketing the new publication to advertisers and potential subscribers. The court has considered all of those matters in deciding these issues. PRL’s Claim for Injunctive Relief PRL’s claims for trademark infringement and unfair competition rest on the contention that a likelihood of confusion results from publication of the New POLO Magazine. PRL alleges that this confusion arises from an appearance that it has sponsored or otherwise approved West-chester’s new periodical. In this circuit, the trademark infringement inquiry is distilled in two basic questions: whether the claimant has a protectable right in its mark, and, if so, whether there is infringement as determined by the likelihood of confusion. See Security Center Ltd. v. First Nat. Sec. Centers, 750 F.2d 1295, 1298 (5th Cir.1985). To prevail on a claim of dilution under state law, PRL must show that its marks are distinctive and that there is a likelihood that dilution will result from Plaintiffs’ use of those marks; to prevail under the new federal law, PRL must show that its marks are “famous” and that Westchester’s use “causes dilution”. Exxon Corp. v. Oxxford Clothes, Inc., 109 F.3d 1070, 1081 (5th Cir.), cert, denied, 522 U.S. 915, 118 S.Ct. 299, 139 L.Ed.2d 231 (1997) (state law); Pebble Beach Co. v. Tour 18 I, Ltd., 942 F.Supp. 1513, 1567 (S.D.Tex.1996), aff'd as modified, 155 F.3d 526 (1998) (state law); 15 U.S.C. § 1125(c)(1). The claim for infringement under 15 U.S.C. § 1125(a) To succeed on its infringement claim under the Lanham Act, PRL must generate findings, in its favor, on whether there is a likelihood of confusion if Plaintiffs are allowed to proceed with publication of the New POLO Magazine in its current format. The Fifth Circuit has held that whether there is a “likelihood of confusion” is a question of fact that is subject to review for clear error only. Moore Business Forms, Inc. v. Ryu, 960 F.2d 486, 489 (5th Cir.1992); T.G.I. Friday’s, Inc. v. International Restaurant Group, Inc., 569 F.2d 895, 899 (5th Cir.1978). Further, likelihood of confusion has been deemed “synonymous with a probability of confusion, which is more than a mere possibility of confusion.” Elvis Presley Enterprises, Inc. v. Capece, 141 F.3d 188, 193 (5th Cir.1998) (citing Blue Bell Bio-Med. v. Cin-Bad, Inc. ., 864 F.2d 1253, 1260 (5th Cir.1989)). Likelihood of Confusion “Once the determination has been made that a term is entitled to trademark protection, the pivotal inquiry becomes whether the allegedly infringing mark is likely to cause consumer confusion.” Boston Beer Co. Ltd. v. Slesar Bros. Brewing Co. Inc., 9 F.3d 175, 180 (1st Cir.1993). That inquiry is based, in turn, on the court’s consideration of several non-exclusive factors which include the following: “(1) the type of mark allegedly infringed, (2) the similarity between the two marks, (3)the similarity of the products or services, (4) the identity of the retail outlets and purchasers, (5) the identity of the advertising media used, (6) the defendant’s intent, and (7) any evidence of actual confusion.” Elvis Presley Enterprises, 141 F.3d at 194 (citing Conan Properties, Inc. v. Conans Pizza, Inc., 752 F.2d 145, 149 (5th Cir.1985)); see also Blue Bell Bio-Med., 864 F.2d at 1260 (citations omitted). “No one factor is dispositive, and a finding of a likelihood of confusion does not even require a positive finding on a majority of these ‘digits of confusion.’ ” Elvis Presley Enterprises, 141 F.3d at 194 (citing Conan Properties, Inc., 752 F.2d at 150). The court is also “free to consider other relevant factors in determining whether a likelihood of confusion exists.” Elvis Presley Enterprises, 141 F.3d at 194 (citing Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1160-61 (5th Cir.1982)). Equally important is the Fifth Circuit’s reminder that the issue of confusion must be examined in the context of the alleged infringing use of the marks, and that no one factor can be isolated to the exclusion of its impact on the others. See Elvis Presley Enterprises, 141 F.3d at 197-98, 200-01. The analysis here is also framed by the fact that Westchester has an incontestable registration for the mark POLO Magazine. (1) The type of mark allegedly infringed “The type of trademark refers to the strength of the mark.” Id. at 201. In weighing the present dispute, the court must first consider whether PRL’s marks are “strong” or “weak”, as “the strength and distinctiveness of [a claimant’s] mark is a vital consideration in determining the scope of protection it should be accorded.” Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 259 (5th Cir.1980), reh. denied, 615 F.2d 252 (5th Cir.), cert. denied, 449 U.S. 899, 101 S.Ct. 268, 66 L.Ed.2d 129 (1980). In the Fifth Circuit, trademarks have been characterized as distinctive and protectable if they serve as “a symbol of origin.” Taco Cabana Intern., Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1119-20 (5th Cir.1991), aff'd, 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615, (1992). Traditionally, trademarks are classified in the following categories: “(1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; or (5) fanciful.” Two Pesos Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 2757, 120 L.Ed.2d 615 (1992); see also Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976). The last three categories are considered “inherently distinctive” and, as such, require no additional showing in order to be protected “because their intrinsic nature serves to identify a particular source of a product.” Sunbeam Products., Inc. v. West Bend Co., 123 F.3d 246, 252 (5th Cir.1997), cert. denied, 523 U.S. 1118, 118 S.Ct. 1795, 140 L.Ed.2d 936 (1998). It is well accepted that arbitrary and fanciful marks “bear no relationship to the products or services to which they are applied”. Zatarains, Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 791 (5th Cir.1983). On the other hand, a mark is deemed descriptive if it merely “ ‘identifies a characteristic or quality of an article or service,’ such as its color, odor, function, dimensions, or ingredients”. Id. at 790 (quoting from Vision Center v. Opticks, Inc., 596 F.2d 111, 115 (5th Cir.1979)). Descriptive marks therefore are protectable only when shown to have “acquire[d] a secondary meaning in the minds of the consuming public”. Id. Secondary meaning must be proven by considerations which include (1) the length and manner of the use of the mark; (2) the volume of sales; (3) the amount and manner of advertising; (4) the nature of use of the mark or trade dress in newspapers and magazines; (5) consumer survey evidence; (6) direct consumer testimony; and (7) the defendant’s intent in copying the mark. See Pebble Beach Co. v. Tour 181 Ltd., 155 F.3d 526, 541 (5th Cir.1998); see also 2 J. Thomas MoCarthy, MoCaRthy on Trademarks and Unfair Competition § 15:30, at 15-47-48 (4th ed.1996). While each of these indicia, alone, may not prove secondary meaning, in combination they may establish that consumers consider the mark to be an “indicator of source.” Pebble Beach, 155 F.3d at 541 (citing Zatarains Inc., 698 F.2d at 795). Wflien considering the evidence on these factors, the court must focus on how it demonstrates, if it does, that the meaning of the mark has been altered in the minds of consumers. For instance, merely spending large sums of money on advertising is not sufficient to elevate a mark to one which has acquired secondary meaning. However, the pervasive influence of such advertisements may serve to emphasize “ ‘the source significance of the designation through prominent use of the [mark or trade dress]’ and are therefore likely to alter the meaning of the mark or trade dress in the minds of consumers.” Pebble Beach, 155 F.3d at 541 (quoting Restatement (Third) of Unfair Competition § 13 cmt. c. at 110 (1995)). In a recent decision, affirming the trial court findings on secondary meaning, the Fifth Circuit relied on the evidence of extensive advertising by the owner, the unsolicited publicity about the product’s trade dress, and the defendant’s intent in copying and using the disputed trade dress in its own advertising. In commenting on the importance of such evidence, the court remarked that: The Lanham Act does not require a party to “own” a word, symbol, or other identifying mark before it may be granted protection from infringement. Rather, all that is required is that a party “use” the mark in commerce to identify its services and distinguish them from the services of others. Pebble Beach, 155 F.3d at 542 (citing 15 U.S.C. § 1127; Boston Prof'l Hockey Ass’n. v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1014 (5th Cir.1975)) (footnote omitted). The evidence that PRL has presented here on the extensive use of its marks, for more than two decades, the dollar amounts it has spent in maintaining its place in the fashion merchandising and home furnishing market, the results of the surveys conducted in this litigation which indicate widespread association of its name in the marketplace, and Westchester’s intent in replicating the Advertising motifs and targeting the PRL customer base, all serve to convince the court that PRL’s marks have achieved secondary meaning. (See Findings of Fact in Support of Permanent Injunctive Relief (“Final Findings”) #5, #6, #10, #11, #12, #16, # 17, # 19; Defendants’ Exhibit # 38). Indeed, Westchester concedes that PRL has strong rights in its “POLO Trademarks”, a family of marks which include such registrations as “Polo by Ralph Lauren” and “USA Polo Club”, when they are used in connection with fashion merchandising and clothing. (July 1998 Memorandum Order, p. 12). Westchester contends, however, that while those particular marks are strong, the polo player symbol, and “polo” alone, are materially different marks, and therefore entitled to a different level of protection. Westchester insists that there is insufficient evidence to show that PRL’s mark is strong when it uses “polo” by itself, without appending it to any other term or name. Westchester argues that “polo”, standing alone, should receive only the most limited protection. (July 1998 Memorandum Order, p. 12). It is true, as Plaintiffs point out, that “Polo” is the surname of a famous historical figure, it is the name of the oldest team sport, at issue here, and it has become a common word for a type of apparel. (July 1998 Memorandum Order, p. 12). Plaintiffs argue that because “polo” is a word in frequent usage, it is, therefore, not inherently distinctive or entitled to strong protection. (Id.) As Plaintiffs note, third-party usage of a common term may serve to limit the protection to which a party is entitled in the pursuit of its rights. Plaintiffs claim that the facts presented here are akin to those that the Fifth Circuit addressed in Amstar Corp. v. Domino’s Pizza, Inc., and so a similar result should ensue. In that case, the parties disputed each other’s right to use “domino” for sugar products and home delivery pizza. Defendants there introduced evidence of seventy-two (72) third-party registrations for the mark “domino ” that had been filed with the PTO. The Fifth Circuit agreed with the complaint that the trial court had too “readily dismissed” that evidence, and had given insufficient weight to the third-party registrations, but it still observed that the plaintiffs mark for its sugar and “related products” was distinctive and well known. Id. at 259-60. Noting that domino is a common English word, in long use as the name of a “game, a hooded costume, a type of mask, and a theory of political expansion”, the court held that the third-party uses and registrations merely “limit[ed] the protection to be accorded plaintiffs mark outside the uses to which plaintiff has already put its mark.” Amstar, 615 F.2d at 260 (citing American Sugar Co. v. Texas Farm Products. Co., 159 U.S.P.Q. 679, 681 (T.T.A.B.1968); Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225 (3d Cir.1978)). Like the defendant in Amstar, West-chester has submitted proof of numerous other PTO registrations for the word “polo” in connection with a variety of products and services. (Plaintiffs’ Exhibit # 1A and # 1C). To emphasize this contention, Plaintiffs point to numerous third-party uses of “polo” in the names of businesses and products. (Plaintiffs’ Exhibit # 1A; # 1C; # IE; # IF) (Plaintiffs’ Exhibit # 96; #147-157; #171-174). West-chester has shown that “polo” was listed in eighty (80) non-PRL affiliated “active registrations” with the PTO. (Plaintiffs’ Exhibit # 1A). Although the court agrees that there are numerous third-party uses, and many federal trademark registrations that also use the word polo, courts will not assume that the mere existence of third-party registrations is proof that they are in such extensive use as to be probative of a mark’s weakness. 2 McCaRthy, supra, § 11:89 at 11-151. Westchester has made no real showing that any of those marks are actually used, or that the other marks have resulted in consumer recognition in the market. Nor can it escape the fact that, in Amstar, the district court had á fifteen-year history of sales and service to compare when evaluating the strength of the marks at issue. Again, even though Plaintiffs have tallied the number of reported third-party uses for the word “polo” in commerce, they have shown little proof that they are actually in use, or that any of them are relevant to the context in which Westchester and PRL use the word. In Sun Banks of Florida, Inc. v. Sun Federal Sav. & Loan Ass’n, 651 F.2d 311, 316 (5th Cir.1981), the court emphasized that third party use of a word is certainly relevant in determining the likelihood of confusion issue, but there it had evidence of “over 4400 businesses registered with the Florida Secretary of State had the word ‘Sun’ in their names.” The court found, from that record, that a number of those businesses could be said to be in competition, in one form or another, with the plaintiff bank. See id. at 317 & n. 10. It seems reasonable to require Plaintiffs to demonstrate, at a minimum, that the cited third-party registrations are being used in a way that generates consumer recognition, if they hope to rebut PRL’s claim of a strong mark. See, e.g., Smith Brothers Mfg. Co. v. Stone Mfg. Co., 476 F.2d 1004, 1005 (C.C.P.A.1973); see also Pebble Beach Co. v. Tour 18 I, Ltd., 942 F.Supp. at 1543. The significance of third-party trademarks depends wholly upon their usage. Scarves by Vera Inc. v. Todo Imports Ltd. Inc., 544 F.2d 1167, 1173-74 (2d Cir.1976); Turner v. HMH Pub. Co., 380 F.2d 224, 228 n. 2 (5th Cir.), cert. denied., 389 U.S. 1006, 88 S.Ct. 566, 19 L.Ed.2d 601 (1967). More importantly, the court finds that although Westchester has shown proof that “polo” has been used in connection with lubricating oils and greases, one-hour dry cleaning services, real estate developments, and bicycles, these are distinguishable from Westches-ter’s use on a magazine devoted to “Adventure, Elegance, [and] Sport”. (Plaintiffs’ Exhibit # 151, # 154, # 148). Westchester also disputes the strength of PRL’s marks through its contention that Defendant’s products are rarely identified by “Polo”, alone, and so the proof of that precise usage bears on its protectability. In the abstract, Plaintiffs are correct; but in the context of PRL’s highly visible marketing strategies for a diverse array of products, it is not persuasive. As early as 1978, in Polo Fashions, Inc. v. Extra Special Products., Inc., one trial court characterized PRL’s marks in the following manner: it is clear that “polo” is generic to polo shirts and coats, descriptive as to other shirts and coats and fanciful as it is applied to other articles of wearing apparel. ... To the extent that the word is descriptive, distinctions must be drawn as to the use to which defendants have put the word. If a competitor uses a descriptive word in its trademark sense “as a symbol to attract public attention” and accomplishes its purpose by adopting the trademark holder’s distinctive typestyle or emphasis upon the descriptive word, such use can be enjoined as trademark infringement or unfair competition. 451 F.Supp. 555, 559 (S.D.N.Y.1978) (citations and internal quotation omitted). There, the trial court also noted that “the use of POLO on ties is a fanciful one,” and that it is even more apparent “that the use of Polo in a trademark sense on non-apparel items unrelated to the sport, such as home furnishings, is a fanciful and not a descriptive use”. See United States Polo Association, Inc. v. Polo Fashions, Inc., 1984 WL 1309 *3 (S.D.NY. Dec.6, 1984) (No. 84-Civ 1142(LBS)). As noted earlier, fanciful marks are inherently strong and entitled to a greater level of protection. See Sunbeam Products., Inc. v. West Bend Co., 123 F.3d at 252. Since the era of that ruling, the Polo Trademarks have been promoted even more extensively and its market activities have increased worldwide. This court finds that PRL has established trademarks in the fashion industry that are both famous and distinctive when associated with numerous and diverse items of men’s and women’s apparel, fashion accessories, fragrance, and home furnishings. (July 1998 Memorandum Order, p. 11). Used in connection with fashion and fashion accessories, these marks are strong. (July 1998 Memorandum Order, p. 11). That PRL has established a strong mark in the realm of furnishings and fashion merchandising is likewise unquestionable. (July 1998 Memorandum Order, p. 12). Defendant’s marks are, therefore, afforded great protection in that use. The question now posed is what level of protection, if any, is the mark entitled to in other fields, particularly in those which may be seen as a “natural area of expansion.” Elvis Presley Enterprises, 141 F.3d at 203; Union Nat. Bank of Texas, Laredo, Tex. v. Union Nat. Bank of Texas, Austin, Tex., 909 F.2d 839, 842 n. 9 (5th Cir.1990). While all of the factors that Westchester cites are relevant to the limits of the protection to which PRL is entitled in its use of the word, it is also true that a mark’s owner has a right to protection in areas of expansion which are logical to its interests. Again, the type of mark at issue is only the first step in assessing the strength of the mark for purposes of likelihood of confusion. At times, Plaintiffs appear to argue that, because they have an incontestable registration for “Polo”, as the name for an equestrian and lifestyle magazine, there need be no further inquiry into the traditional likelihood of confusion factors. See Petro Stopping Centers, L.P. v. James River Petroleum, Inc., 130 F.3d 88, 92 (4th Cir.1997), cert. denied, 523 U.S. 1095, 118 S.Ct. 1561, 140 L.Ed.2d 793 (1998) (the court is “ ‘free to address whether Plaintiffs’ incontestable trademark is descriptive or suggestive in determining whether the likelihood of consumer confusion exists in this case.’ ”) (quoting Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 935 (4th Cir.1995)). Even though Westchester relies on its incontestable registration to defeat PRL’s claims here, it has not presented any persuasive evidence that its mark even approaches the strength of the PRL marks. Outside the limited readership of the USPA, there was no showing that its use of “Polo” in any way identified it, or Fleet Street, as the “source” of the periodical. On the other hand, PRL has shown that its presence is pervasive in the world of magazines, lifestyle and otherwise. Moreover, when used in connection with any products other than the attire worn while playing equestrian sports, the Polo mark is, at a minimum arbitrary, if not fanciful, for use on any other consumer goods. The court finds, therefore, that, on balance, the strength of the mark analysis weighs in favor of PRL, and this “digit of confusion” benefits Defendants. (2) Similarity between the products and services Ralph Lauren does not, at present, publish any magazine, much less one devoted to lifestyles, travel, or fashion. Plaintiffs are therefore correct when they argue that the court must consider that Westchester and PRL are in different businesses. Plaintiffs are incorrect, however, when they conclude that because the products are non-competing, confusion cannot arise. True, Westchester publishes a magazine, and magazines are not products which are directly related to clothing, eyewear, home furnishings, or the other items for which PRL has previously obtained trademark protection. That, however, is not dispositive of the competing issues. The law in this circuit is quite clear that there may be a finding of trademark infringement even where the products are entirely different. See, e.g., Fuji Photo Film Co. v. Shinoham Shoji Kabushiki Kaisha, 754 F.2d 591, 598 (5th Cir.), reh. denied, 761 F.2d 695 (1985); Conan Properties., Inc., 752 F.2d at 149-50. “When products or services are noncompeting, the confusion at issue is one of sponsorship, affiliation, or connection.” Elvis Presley Enterprises, 141 F.3d at 202 (citing Kentucky Fried Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 388 (5th Cir.1977)); 3 McCarthy, §§ 24:3, 24:6 at 24-8-9, 24-13-16. “This is undoubtedly so, for confusion, not competition, is the touchstone of trademark infringement.” Mutual of Omaha Ins. Co. v. Novak, 836 F.2d 397, 399 (8th Cir.1987) (citing SquiniCo v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir.1980)). Because the likelihood of confusion is a question of fact, the Fifth Circuit has repeatedly rejected arguments that “infringement occurs only when the alleged infringer uses the mark on the same category of product with respect to which the trademark owner obtained the mark.” Kentucky Fried Chicken Corp., 549 F.2d at 388; see also Professional Golfers Ass’n. of Amer. v. Bankers Life & Cas. Co., 514 F.2d 665, 669 (5th Cir.1975). Indeed, this is an area in which courts must be especially vigilant because the true issue is whether the complained of use is likely to confuse purchasers as to the user’s affiliation or endorsement. See Fuji Photo Film Co. Inc., 754 F.2d at 596 (citing Kentucky Fried Chicken, 549 F.2d at 388). This is particularly so when the products are dissimilar, but are used in an area in which the owner of a mark is likely to expand, or to “bridge the gap”. As PRL notes, the Fifth Circuit emphasized that “[t]he danger of affiliation or sponsorship confusion increases when the junior user’s services are in a market that is one into which the senior user would naturally expand.” Elvis Presley Enterprises, Inc., 141 F.3d at 202 (citing Restatement, supra, § 21(e) & cmt. j). In Elvis Presley Enterprises, the Fifth Circuit found that the parties’ products and services did not compete directly, but still held, in the context of those circumstances, that the plaintiff faced irreparable harm from the illusion of affiliation or sponsorship. See 141 F.3d at 202, 207. There, the court concluded that a restaurant and bar with live music would be a “natural area of expansion” for the plaintiff. Id. at 203. The Fifth Circuit reasoned that, “ ‘[i]f consumers believe, even though falsely, that the natural tendency of producers of the type of goods marketed by the prior user is to expand into the market for the type of goods marketed by the subsequent user, confusion may be likely.’ ” Id. at 202. (quoting Restatement, supra, § 21, cmt j). It is significant that the analysis in Elvis Presley Enterprises was without regard to whether Elvis Presley Enterprises actually intended to expand into the restaurant market. Instead, the Fifth Circuit found that the “proper focus is on (1) whether the products and services of [the Plaintiff] and the Defendants are similar enough to cause confusion as to source or affiliation or (2) whether the Defendant’s bar is in a market into which [the Plaintiff] would naturally be perceived to expand.” Id. Inquiry into a natural area of expansion is even more pertinent here because Ralph Lauren has, apparently, investigated publishing a magazine of his own. (Plaintiffs’ Exhibit # 109). See Centaur Communications, Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1227 (2d Cir.1987); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 874 (2d Cir.1986) (If the senior user can show such an intention, it helps to establish a future likelihood of confusion as to source.) The inquiry, therefore, becomes whether PRL’s products and services are “similar enough” to Westchester’s to cause confusion as to source or affiliation, or whether Westchester’s market is one into which PRL “would naturally be perceived to expand.” Elvis Presley Enterprises, 141 F.3d at 202. Westchester argues that the fact that PRL has been “considering” publishing a magazine for years, without doing so, “suggests that the connection between clothing sales and magazine publishing is more tenuous than PRL would have the court believe”. (See Plaintiffs Exhibit # 180), (“It’s been harder to sell the magazine on the strength of the Lauren name, and Ralph’s vision, than we realized. Ad prospects ‘get’ Polo and Lauren fashion, but they don’t easily see how Ralph can translate his success as a designer into a distinctive magazine”; “ ‘Is there really a need for a magazine named Lauren?’ is a common question.’ ”); see also 11/18/98 A.M. Tr. 91:7 - 94:2 (Slaughter) (“As a publisher and understanding the publishing industry, [PRL’s use of ‘polo’] has absolutely nothing to do with our ability to publish a successful magazine.”). But whether PRL will succeed in marketing a magazine is not entirely on point. Indeed, it has been some time since “need” motivated product development. It seems clear that if the consuming public believes, albeit erroneously, that there is an association between PRL and the New POLO Magazine, the requisite likelihood of confusion is present and the “zone of expansion” argument gains currency. It is also critical to note that, just as in the case of the Elvis Presley Enterprises’ marks, PRL has established pervasive marks across “a spectrum of products”. Rather than defeating a claim of a likelihood of confusion, as Westchester argues, the fact that PRL has licenses for so many products, and “is such a strong presence” in fashion marketing, may achieve the opposite result. “The pervasiveness of [the] marks across the spectrum of products ... support a likelihood of confusion.” Elvis Presley Enterprises, 141 F.3d at 203 (citing Armco Inc. v. Armco Burglar Alarm Co., 693 F.2d at 1161) (“Diversification makes it more likely that a potential customer would associate the nondiversified company’s services with the diversified company, even though the two companies do not actually compete.”). Put bluntly, in today’s merchandising world, is a magazine published by a clothing designer any less likely than china and dinnerware produced by another designer (Gianni Versace)? Or a magazine and television show devoted to home decorating and crafts, developed by a housekeeper extraordinaire (Martha Stewart)? Are rock concerts sponsored by yet another designer (Tommy Hilfiger), or Broadway musicals produced by Walt Disney’s old company any more likely “zones of expansion” than a “lifestyle magazine” published by Oprah Winfrey or even Ralph Lauren? It appears that the New POLO Magazine, with its emphasis on fashion, elegance, and an “affluent lifestyle” is meant to appeal to the same markets in which PRL has acquired a widespread identity. The court agrees with PRL that “in the consumer’s mind, the link between PRL’s Polo Trademarks and the pages of fashion magazines” may be connected. (Defendant’s Exhibit # 121). Although, at present, PRL does not publish a “lifestyle magazine”, all of the attendant circumstances, as well as the context, in which these noncompeting products greet purchasers, indicate that there is a likelihood that consumers will be confused about PRL’s association with Plaintiffs’ magazine. The court finds that the publication of a lifestyle and fashion magazine, in fact, could be perceived as a “natural area of expansion” for PRL. Elvis Presley Enterprises, 141 F.3d at 202. Findings on this digit of confusion weigh in favor of PRL. (3) Similarity of the mark The parties agree that this factor overlaps with a consideration of the similarity of the products. Westchester contends that no similarity factor favors PRL because both parties are using a common word and both are spelling it in the only way possible. Westchester insists that PRL most often uses the word in connection with another qualifier, such as, “Lauren” or with “Ralph Lauren”, or with “USA”, “Jean”, “Sport”, or the like, and so these qualified uses necessarily refute any likelihood of confusion because PRL does not, typically, use the word in isolation. To some extent, however, Westchester’s argument misses the point in this particular dispute. (Docket Entry #37, p. 14). As MCCARTHY points out, [t]he degree of similarity of the marks needed to prove likely confusion will vary with the difference in the goods and services of the parties. Where the goods and services are directly competitive, the degree of similarity required to prove a likelihood of confusion is less than in the case of dissimilar products. Thus, the greater the similarity in the marks, the lesser the similarity required in the goods or services of the parties to support a finding of likely confusion. If the marks are very similar, it is only necessary that there be a viable relationship between the goods or services in order to support a holding of likelihood of confusion. 3 McCaRthy, supra, § 23:20 at 23-51 (footnotes and internal quotations omitted). More importantly, the Fifth Circuit has cautioned that a mark must be considered in the context of its use and not in isolation. Relying on the Restatement, the court remarked, in Elvis Presley Enterprises, that [e]ven if prospective purchasers recognize that the two designations are distinct, confusion may result if purchasers are likely to assume that the similarities in the designations indicate a connection between the two users. The relevant inquiry is whether, under the circumstances of the use, “the marks are sufficiently similar that prospective purchasers are likely to believe that the two users are somehow associated.” 141 F.3d at 201 (quoting Restatement, supra, § 21 cmt. c). Equally important in weighing this factor, is the earlier observation by the Fifth Circuit in Exxon Corp. v. Texas Motor Exchange of Houston, Inc., that “[t]he similarity of design is determined by considering the overall impression created by the mark as a whole rather than simply comparing individual features of the marks.” 628 F.2d 500, 504-05 (5th Cir.1980). This has been characterized as “ ‘really nothing more than a subjective eyeball test’ ”. Id. (quoting 2 J. McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 237:7 (1973)). In fact, it is well settled that “similarity is not limited to the eye or ear.” The mental impact of a similarity in meaning may be so pervasive as to outweigh any visual or phonetic differences. That is, the “psychological imagery evoked by the respective marks” may overpower the corresponding dissimilarities in appearance and sound. Vornado, Inc. v. Breuer Elec. Mfg Co., 55 C.C.P.A. 858, 390 F.2d 724, 728 (1968) (Smith, J., dissenting). “It is not realistic to decide likelihood of confusion by comparing the two marks naked and divorced from surrounding trade dress, since this is not the way the buyers view the goods in the market.” 3 McCaRthy, supra, § 23:60 at 23-137. As the Fifth Circuit has observed, “trademarks cannot be isolated from the labels on which they appear.” Sun-Maid Raisin Growers of Cal. v. Sunaid Food Products, Inc., 356 F.2d 467, 469 (5th Cir. 1966). It was made clear in Elvis Presley Enterprises, that the meaning that is conveyed by use of a mark depends on the context in which it is used. Referring to the valuable, but difficult to articulate, attribute of a mark, the court emphasized Justice Frankfurter’s assessment: The Supreme Court has said that “[t]he protection of trade-mark’s is the law’s recognition of the psychological function symbols.” Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203, 205, 62 S.Ct. 1022, 1024, 86 L.Ed. 1381 (1942). To understand a symbol’s psychological function, one must consider it in the context in which it is used and not in a vacuum. See American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, 11 & n. 7 (5th Cir.1974) (“[W]ords are chameleons, which reflect the color of their environment.”); 2 Jerome Gilson, Trademarx PROTECTION AND PRACTICE § 5.09[1], at 5-137 n. 1 (Jeffrey M. Samuels ed., 1997) (noting that advertising is used by the holders of marks to “establish[ ] a sufficient aura of desirability to induce the public to purchase their products and services”). Elvis Presley Enterprises, 141 F.3d at 197 (alterations in original). The court finds that, given the context of its use on the cover of a magazine devoted to “adventure” and “elegance”, the similarity of the image created by the New POLO Magazine does suggest an identification with PRL’s products. In that regard, the use of the word on a glossy, high production value magazine, which depicts well-groomed, well-dressed, well-fed, and, to date, attractive Caucasian males and females, appears quite similar to the PRL mark which has been reproduced, in similar settings, in thousands of pages of magazine ads. Further, “[w]hile an abstract marketing theme alone may not be the subject of exclusive rights, when defendant uses a similar mark in the context of a similar marketing theme, confusion is made all the more likely.” 3 McCarthy, supra, § 23:52 at 23-116 (citing B.D. Communications, Inc. v. Dial Media, Inc., 429 F.Supp. 1011 (S.D.N.Y.1977); General Foods Corp. v. Borden Inc., 191 U.S.P.Q. 674 (N.D.Ill.1976)). In weighing trademark disputes, and the evidence on the issue of a likelihood of confusion, the court must strive to place itself in the shoes of a prospective purchaser. In this role, the court does not act as an enlightened educator of the public but takes into account the mythical ordinary prospective purchaser’s capacity to discriminate as well as his propensity for carelessness. Accordingly, an overly analytical approach with close attention to specific differences is less important than the overall impression of general similarity. E.I. DuPont de Nemours & Co. v. Yoshida Intern., Inc., 393 F.Supp. 502, 510 (E.D.N.Y.1975). “ ‘Legal surgery, in which trademarks have parts enhanced or discarded, is of little aid in determining the effect of design marks on purchasers who merely recollect. The scalpel is employed by lawyers, not purchasers.’ ” 3 MoCarthy, supra, § 23:58, at 23-130 (quoting Grandpa Pidgeon’s of Missouri, Inc. v. Borgsmiller, 477 F.2d 586 (C.C.P.A.1973)). The New POLO Magazine, through its cover photographs and layouts, appears to, as PRL argues, link a promise of “sophistication and attempt[s] to serve the same consumers under the Polo name”. (Docket Entry # 20, p. 15). Westchester’s use of its POLO mark on the New POLO Magazine creates a likelihood that consumers will assume that it is sponsored or produced by Polo Ralph Lauren. Accordingly, the court finds in favor of PRL on this digit of confusion. (4) Identity of advertising media used The court finds that the Old POLO Magazine was, without doubt, a periodical devoted to “the sport of polo” and it was distributed primarily to polo players, most of whom were members of the USPA. In that context, the POLO mark was clearly used in connection with the equestrian game. When Plaintiffs chose to revamp the magazine, it is reasonable to conclude that they changed the context in which the mark is used. By changing the context, and accenting features devoted to “adventure” and “elegance”, Plaintiffs have changed the meaning that the mark conveys. The new meaning, as PRL maintains, appears to have more to do with “elegant lifestyles” than with the sport. The New POLO Magazine’s advertisers are “fashion oriented” to an extent that was not present in the previous publications. The New POLO Magazine’s original promotional and marketing materials touted its fashion and lifestyle content and de-emphasized the sport that is its reported inspiration. (July 1998 Memorandum Order, p. 19). Further, “[i]n determining the meaning and connotation which the trademark projects, it is proper to look to the context of use, such as material on labels, packaging, advertising and the like.” 3 McCaRthy, supra, § 23:26 at 23-61. The court concludes, from all of the evidence presented, that Plaintiffs’ target audience is no longer USPA members, but apparently “high-end retail” customers. Neiman Marcus, an importa