Full opinion text
Findings of Fact and Conclusions of Law SIMANDLE, District Judge: Table of Contents I. INTRODUCTION.430 II. PROCEDURAL HISTORY....431 III. FINDINGS OF FACT. t-H co A. Plaintiff and its business. 1. History and founding of company.. 2. Products sold. a. EAS (Electronic Article Surveillance) Systems. b. EAC (Electronic Access Control) Systems . e. CCTV (Closed Circuit Television) Systems. d. RFID (Radio Frequency Identification Device) . e. Use of the Checkpoint mark on these products. 3. Percent of revenues. 4. Major competitors and relative market shares. 5. Marketing techniques, advertising and trades shows. 6. Sophistication of purchasers, ■sales modes, time cycles, and end-user interaction. CO 00 B. Defendant and its business . 00 CO 1. History and founding of company. 00 CO ^ 2. Products sold. o ^ ^ a. Products which perform network security functions: firewalls and VPNs. >£* o b. Products which do not perform network security functions . £»• l-4 3. Percent of revenues. 4^ 4^. to 4. Major competitors and relative market shares. 4^ to 5. Marketing techniques, advertising, and trade shows. 4^ to 6. Sophistication of purchasers, sales modes, time cycles, and end-user interaction. CO C. Though they are major participants in different submarkets of corporate security, the parties are not competitors. 4^ cr D. Instances of actual confusion. 4^--3 E. The corporate security environment. 4s»-CR © 1. Evidence of convergence of physical and information security markets . 4^-CR O 2. Evidence of divergence and specialization. 4^ CR tO 3. Lack of generality regarding purchasers. 4^ CR 4^ 4. Specialization of skills. 4*. CR 4^ 5. Tendency of physical security toward protection of information, . including network security. 4^ CR CR IV. CONCLUSIONS OF LAW. 456 A. Liability for Infringement and Unfair Competition. CO LO 1. Similarity of Overall Commercial Impressions of the Marks. E-» 2. Strength of Plaintiffs Mark. 00 lO 3. Price of Goods, Sophistication of Purchasers, Care and Attention Expected of Reasonable Consumers. o CO 4. Length of Time Parties Have Used Their Marks Without Evidence of Actual Confusion, and the Evidence of Actual Consumer Confusion . CO 5. Intent of Defendant in Adopting the Mark. co 6. Parties’ Channels of Trade, Markets, Target Customers, and Likelihood of Expansion . CO CO B. Ultimate Conclusion of Law: No Likelihood of Confusion 467 I. INTRODUCTION In this action alleging trademark infringement and unfair competition in violation of the Lanham Act, 15 U.S.C. §§ 1114 & 1125(a;, plaintiff Checkpoint Systems, Inc. (“Checkpoint”) alleges that the defendant, Check Point Software Technologies, Inc. (“CPS”) has used the marks “CHECKPOINT,” “Checkpoint,” and “Check Point” in violation of plaintiffs registered trademark for “Checkpoint.” Plaintiff Checkpoint is a leading company in the field of retail security, manufacturing and distributing products under the Checkpoint mark designed to help retailers prevent losses caused by theft of merchandise and also to help manage the inventory and supply chain of products or merchandise. Defendant CPS is a leading company in the Internet-related field of protecting the electronic data flow in computer networks from electronic intrusion and monitoring the flow of data between the Internet and private intranets of its customers. Defendant markets its network security products as “Check Point Software Technologies” and has also used the names “Check Point” and “CheckPoint.” The companies are not competitors. Plaintiff seeks to enjoin defendant from any further use of the Checkpoint name, including any of its similar variations, and this Court, having conducted a non-jury trial, must decide whether plaintiff has proved entitlement to such relief. Plaintiffs request for monetary damages is no longer before the court, having been denied by summary judgment, there having been no evidence of financial loss or willful infringement. The principal issue to be decided is whether defendant’s use of the mark (Checkpoint, Checkpoint, or Check Point) to identify its goods and services is likely to create confusion. Although the similarity in corporate names is clear, and such similarity is an important factor in determining whether consumers are likely to be confused about the origin of these noncompeting products, this similarity is only the first factor in the analysis required by cases such as Scott Paper Co. v. Scott’s Liquid Gold, Inc., 589 F.2d 1225, 1229-81 (3d Cir.1978) and Fisons Horticulture, Inc. v. Vigoro Industries, Inc., 30 F.3d 466, 473 (3d Cir.1994). These Scott/Fisons factors are the considerations regarding the context in which the mark is used in the marketplace which must be weighed to answer the central question of whether plaintiff has proved, by a preponderance of the evidence, that consumers viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark. This Court will examine the evidence, and lack of evidence, regarding likelihood of confusion with respect to likelihood that a consumer viewing defendant’s mark would probably assume that it is associated with plaintiff, and also the “reverse confusion” issue of whether a consumer viewing plaintiffs mark would probably assume that it is associated with the defendant. For the reasons stated herein, the Court concludes that plaintiff has not demonstrated the likelihood of actionable confusion, nor of reverse confusion, with respect to defendant’s use of the contested marks, and that the plaintiff is therefore not entitled to relief under the Lanham Act. II. PROCEDURAL HISTORY Plaintiff Checkpoint Systems, Inc. (“Checkpoint”) filed its Complaint against defendant Check Point Software Technologies, Inc. (“CPS”) alleging trademark infringement and unfair competition on July 5, 1996. The parties engaged in several rounds of motion practice. First, on May 26, 1998, this Court issued an Opinion and Order denying the parties’ cross-motions for summary judgment. Second, on May 17, 1999, this Court entered an Opinion and Order granting plaintiffs motion in limine to exclude the testimony of defendant’s expert Dr. Dov Frishberg and denying defendant’s motion in limine to exclude the testimony of plaintiffs’ experts Ira Somerson, Dr. Robert D. McCrie, David L. Johnston, Peter E. Ohlhausen, and Dr. Sanford Sherizen. Third, on May 17, 1999, the Court also entered an order granting plaintiffs motion for leave to renew its motion for summary judgment. Thereafter, the parties filed renewed cross-motions for summary judgment, supplementing their earlier motions with new exhibits. On October 28, 1999, this Court denied the plaintiffs motion for summary judgment and granted in part and denied in part defendant’s motion for summary judgment, precluding plaintiff from seeking damages and attorneys’ fees. A non-jury trial in the matter was held November 1-4, 8-10, and 23, 1999. Plaintiff Checkpoint presented the testimony of Kevin Dowd (plaintiffs Chief Executive Officer), Steven Wagner (plaintiffs V.P. of Access Control), John Thorne (plaintiffs former Director of Product Management), Craig Knick (Sales Engineer for plaintiff), and Thomas Upshur (plaintiffs Senior Director of RFID Marketing and Product Management), as well as expert testimony of Ira Somerson (security management), Peter Ohlhausen (corporate security), Dr. Sanford Sherizen (information security), Dr. Robert McCrie (corporate security), and David Johnston (corporate security). The Court then denied, on November 4, 1999, defendant’s application for a judgment on partial findings pursuant to Fed. R.Civ.P. 52(c). Defendant CPS presented testimony of Kin Mitra (a CPS Regional Director of Sales), Kelly O’Connor (CPS’s Director of Marketing Communications), Schlomo Kramer (CPS’s former Director and founder), Rakeesh Loonkar (a CPS value added reseller (“VAR”)), Charles Breed (V.P. of Kroll O’Gara’s Information Security Group), William Lavelle (a CPS Territorial Manager), Deborah Rieman (CPS’s former Chief Executive Officer), and Gary Fish (a CPS VAR), as well as the expert testimony of Philip Stern (corporate security) and John Morency (computer networking). Additionally, both parties submitted into evidence deposition designations and responses to written discovery requests. The parties submitted proposed findings of fact and conclusions of law, and final argument was heard on January 14, 2000. The Court now issues its final ruling. III. FINDINGS OF FACT A. Plaintiff and its business 1. History and founding of company Plaintiff Checkpoint is a Pennsylvania corporation having its principal place of business at 101 Wolf Drive, Thorofare, New Jersey 08086. (DX-9). Since 1967, plaintiff and its predecessors have been engaged in the manufacture and sale of electronic security equipment and systems for retail and other commercial applications and computer-based access control systems for commercial applications. (DX-10.) The essence of Checkpoint’s business is to help retailers protect against theft of merchandise from stores, as discussed below. Plaintiff claims that it provides comprehensive corporate security solutions. (Dowd Tr. 34; McCrie Tr. 755; Olhausen Tr. 476.) A public company, its stock was traded on NASDAQ from 1977 through 1993 and on the N.Y. Stock Exchange from October 29, 1993 to the present, under the symbol “CKP.” (Dowd Tr. 37.) Plaintiff has earned an excellent reputation and has achieved commercial success in the field of retail corporate security, including primarily the detection of pilferage of merchandise from retail stores by patrons or employees, in which it is one of two dominant players. (Thorne Tr. 267; DX-9-11.) Checkpoint has used the “CHECKPOINT” mark and name since at least early as May 8, 1967. (Dowd Tr. 34, 90.) It owns U.S. Trademark Registration Nos. 845,817 and 844,752 for “CHECKPOINT;” these registrations are valid, subsisting, incontestable, and renewed. (Dowd. Tr. 90; PX-1-2.) Indeed, defendant has not challenged the validity of these registrations or plaintiffs ownership of them. Checkpoint has grown over the years, largely by acquiring other companies. As it has acquired other companies, it has consistently changed their names so that the acquired companies employ the “CHECKPOINT” mark and name, thereby underscoring for the relevant public that companies plaintiffs business using the “CHECKPOINT” mark and name are part of a corporate family. (Dowd Tr. 40-41.) The “CHECKPOINT” family includes Checkpoint Systems, Inc. and Checkpoint Security Systems Group, Inc. (formerly Alarmex), and those companies purchased by Checkpoint and subsequently operated within Checkpoint, such as Sie-lox. (Dowd Tr. 49, 125.) Checkpoint is currently in negotiations to acquire Meto AG to further expand Checkpoint’s capabilities in the radio frequency identification devices (“RFID”) market, again in the field of retail security. (Dowd Tr. 41-42.) Additionally, Checkpoint has acquired companies in Europe to expand geographic reach. (Dowd Tr. 38-40.) It has had a presence in Israel since at least early 1980. (McCrie Tr. 757.) In its 1998 Annual Report to shareholders, plaintiff reported its corporate “Vision” as follows: “To establish Checkpoint Systems, Inc., as the premier worldwide radio frequency technology supply chain management solutions provider.” (DX-55.) Plaintiff used similar terminology to describe the rationale for its $300 million acquisition of Meto AG, a European-based competitor. (DX 110: “global retail supply chain management provider.”) Similarly, plaintiff described its “Mission” as “provid[ing] retailers, commercial and industrial businesses, and systems integrators with comprehensive radio frequency technology-based supply chain management and security solution that move goods effectively and efficiently, control shortage losses, improve sales and profitability, and ensure the accuracy and security of assets.” (Id.) In that same report (DX-55 at 15), in language largely unchanged over the last several years (Dowd Tr. 118-19), plaintiff described the essence of its business as helping retailers protect against theft and to thereby improve the display options for merchandise: • “Checkpoint is a designer, manufacturer, and distributor of integrated electronic security systems ... designed primarily to help retailers prevent losses caused by the theft of merchandise.” • “The Company’s diversified product lines are designed to help retailers prevent losses caused by theft (both by customers and employees) and reduce selling costs through lower staff requirements.” • “The Company’s products facilitate the open display of consumer goods, which allow the retailer to maximize sales opportunities.” Id. 2. Products sold Throughout its over 30 year history, Checkpoint has expanded and diversified its business and product lines both through internal development and by acquiring other companies in the corporate security industry. (Dowd Tr. 38 — 42.) Its security systems consist essentially of four types of products: (i) electronic article surveillance (“EAS”) systems, including point of sale monitoring systems (introduced in libraries in 1967), (ii) access control systems (“EAC”) (introduced in 1986), (iii) closed circuit television (“CCTV”) systems (introduced in 1995), and (iv) radio , frequency identification device (“RFID”) products (introduced in 1999). (DX 55 at 16-17; Dowd Tr. 34, 38, 39.) Despite this diversification, Checkpoint’s name and reputation is primarily associated with its traditional strength in electronic article surveillance (“EAS”) systems, comprising about 90% of its revenues, as discussed below. Each product line is now described. a. EAS (Electronic Article Surveillance) Systems Checkpoint’s EAS systems are comprised of three components: tags or labels having circuitry, electronic sensors, and deactivation equipment. (Thorne Tr. 249, 251; PX-3; DX-9.) The EAS systems alert users to unauthorized removal of merchandise from stores, books from libraries, and software and hardware from data centers. (Dowd Tr. 39; Thorne Tr. 249-50; PX-3.) Such tags are placed on items of merchandise and they are read and deactivated when the customer transacts the item. If the customer or employee attempts to take the item from the store without paying for it, an antenna, usually at an exit, will detect the tag and will sound an alarm so that the event can be checked by store security personnel. While plaintiffs EAS systems are typically installed in retail establishments, they are also used in non-traditional settings, such as in nuclear plants by placing EAS tags in proprietary documents in a secured area. (Thorne Tr. 274-75.) Checkpoint’s EAS products are integrated with other security systems, including POS and CCTV systems (described below); that integration capability provides a key competitive advantage. (Thorne Tr. 250-51.) b. EAC (Electronic Access Control) Systems Of far lesser importance in Checkpoint’s sales line, plaintiffs electronic access control systems prevent unauthorized access to restricted areas. (Wagner Tr. 148, 208.) These software-driven lines feature dial-in networking capabilities and prevent loss of an organization’s assets. (Wagner Tr. 148-49; Dowd Tr. 51.) Checkpoint’s EAC software products reside on a CD-ROM so the system can be implemented on an organization’s server. (Wagner Tr. 149.) The EAC systems not only keep track of persons accessing buildings, but also persons accessing equipment and items including software within restricted areas. (Wagner T. 156-57.) Employees are given security cards with integrated' circuits that allow them access to certain areas. (Wagner Tr. 159.) Such cards, also used in connection with Checkpoint’s CCTV products (described below), are a type of “smart card,” as intelligence can be written onto the card. (Wagner Tr. 237.) In the future, such cards could enable log-on access to computers. (Wagner Tr. 238.) No such products are currently in development by plaintiff, however. These systems allow the integration of third party software packages to enhance the basic EAC system. (Wagner Tr. 154-55.) Checkpoint developed for January 2000 introduction a product that will track the movement of assets throughout an organization, and permit or deny physical movement of those assets (including personnel) based upon authorization. (Wagner Tr. 165.) The EAC products (like the POS and CCTV systems described below) are integrated with a customer’s computer system, ranging from the single workstation of a “mom and pop” store to a computer network or network of networks utilized by major national retail chains. (Wagner Tr. 149, 155-56.) Checkpoint’s Value Added Resellers (“VARs”) build the proprietary networks that carry Checkpoint’s EAC products, or can integrate Checkpoint’s products into a pre-existing network. (Wagner Tr. 210-11.) The EAC products reside on a LAN (local area network) or WAN (wide area network) and process the systems’ signals based on privileges allowed by the network manager under the network’s protocol. (Wagner Tr. 240-41.) Under these protocols, network managers place restrictions on who can access information contained in certain directories. (Knick Tr. 330, 380.) The information contained in the EAC products and generated by the EAC products is maintained in a database, and may include an employee’s job title, vehicle license numbers, address, or similar information. (Knick Tr. 388-39.) Levels of authority may be assigned to managers or users of the EAC system, thereby allowing only persons of certain assigned levels to have access to proprietary information. (Knick Tr. 389.) Among plaintiffs EAC products are the “THRESHOLD” products, software-driven, multi-tasking, multi-operator systems. (Wagner Tr. 151-53; PX-23; PX-23(a).) This includes “THRESHOLD NT,” which may be run on the Internet. The product brochure for these products indicates that with these products, CCTV, ID imaging, time, attendance, activity management, air conditioning controls, and lighting controls can all be integrated, allowing “pinpoint precise data management....” (PX-23(a).) The THRESHOLD products have the capability to encrypt the data generated by Checkpoint’s EAC systems. (Knick Tr. 354.) c. CCTV (Closed Circuit Television) Systems Checkpoint’s closed circuit television systems and point of sale (POS) systems generate data at the point of sale in video and electronic form and transfer the data which is subsequently integrated and electronically sent to remote locations to be used for employee audit and inventory management and control. Such systems currently transfer such information over traditional telephone lines, but will, in the near future, transfer such information over customers’ LAN or WAN. (Dowd Tr. 35; Wagner Tr. 206-07, 212.) One such CCTV product is VIEWPOINT, a total transaction monitoring system and computerized point of sale scanning system that has remote dial-in capabilities. (Dowd Tr. 35; Thorne Tr. 265; PX-26.) VIEWPOINT electronically records and stores point of sale transactions from multiple point of sale locations via CCTV surveillance and cash register scanners. A relational database and report generation allows for identification of suspicious transactions. (Id.) The latest developments in plaintiffs line of POS and CCTV products establish the foundation for a POS system that transmits secure digital images to remote locations, so security managers can monitor facilities from remote locations. This monitoring depends on a secure computer network connection such as that which network security software provides. (Dowd Tr. 35.) Such products can and have been integrated. For example, Rite Aid Corporation acquired a company named SASSY to build its IS and POS systems for its drug store chain. The SASSY group developed a POS monitoring system so that Rite Aid’s Chief Information Officer (“CIO”) could remotely monitor sales activity occurring in other parts of the country. (Thorne Tr. 282.) Rite Aid approached plaintiff to assist with developing this system so that other applications, such as heating, air-conditioning, attendance, and security applications could be integrated on a single network. (Thorne Tr. 282.) Such a program is currently in “alpha” testing. (Thorne Tr. 283.) d. RFID (Radio Frequency Identification Device) In 1997, plaintiff began Diamond Checkpoint Development Group, a joint research and development relationship with Mitsubishi Materials Corporation of Japan. (Dowd Tr. 51-51; DX-10.) The research and development aims at combining radio frequency (“RF”) security tags with integrated circuits. (Dowd Tr. 51-52.) The resulting “intelligent tags” carry, among other things, information about a product’s history from initial manufacturing through distribution, sale, and, ultimately, consumer record keeping. (Thorne Tr. 251-53.) Such tags surpass traditional bar codes in their ability to store and communicate information concerning specific items and do not have bar coding’s line of sight limitations on data capture. (Thorne Tr. 251-52; Upshur Tr. 392.) The proprietary information generated is entered into a database server and can be transmitted virtually anywhere that the user -wishes via computer. (Dowd Tr. 45, 49; Thorne Tr. 253.) In early 2000, plaintiff plans to introduce a “read and write” tag that will allow users to add or delete information contained in a RFID tag. (Dowd Tr. 52.). The RFID products are not only directed to retail applications, but also to libraries and commercial and industrial applications. (Upshur Tr. 392-93.) Plaintiffs acquisition of Meto AG would further expand Checkpoint’s capabilities in the RFID field throughout the world. (Dowd Tr. 41-42.) Plaintiffs products, as with many commercial products and services, are thus becoming more computer-driven. They are also structured such that they can perform non-security functions, such as monitoring inventory and the movement of equipment. They also continue to serve crucial functions in the world of corporate security, focusing on physical security of products and personnel, for which plaintiff is known. e. Use of the Checkpoint mark on these products Checkpoint’s “CHECKPOINT” trademark is prominently displayed on Checkpoint’s products, including tags and sensors, access control cards, product specification sheets, and computer screens. (PX-3; PX-4; Wagner Tr. 160, 163; Thorne Tr. 257, 259-60, 262, 288.) Approximately 30-40,000 antennae for retail merchandise security with the CHECKPOINT mark were sold in 1998. (Thorne Tr. 257.) There are approximately 350,000 antennae bearing the mark in the marketplace. (Thorne Tr. 258.) Often these antennae are placed as detection devices at the exits of retail stores. Approximately 500,000 Checkpoint hard tags in circulation bear the CHECKPOINT mark. (Thorne Tr. 262-63.) In 1997 and 1998, Checkpoint sold 150,000 and 200,000 access control cards, respectively, each of which bears the CHECKPOINT mark. As of the time of trial, plaintiff expected that it would sell in excess of 300,000 access control cards in 1999. (Wagner Tr. 160.) The CHECKPOINT mark is also displayed briefly on a user’s computer screen when the access control system is loading. (Wagner Tr. 163.) 3. Percent of revenues Plaintiff, a growing company, has experienced substantial financial success. (Dowd Tr. 37.) Gross revenues increased from approximately $50 million in 1990 to over $360 million in 1998. Fortune magazine identified plaintiff as one of America’s fastest growing companies in 1996. (Dowd Tr. 67; PX-9.) The electronic article surveillance business represents far and away the largest part of plaintiffs business, about 90%. (Thorne Tr. 271.) EAS products are sold primarily to retail, industrial, institutional, and government users. (Dowd Tr. 34-36, 54; Wagner Tr. 172; Thorne Tr. 251, 276.) Checkpoint’s projected 1999 revenues for its EAS systems are in the range of $365-380 million. Checkpoint has many thousands of accounts for its EAS systems throughout the U.S. (Thorne Tr. 272.) Representative end users of Checkpoint’s EAS products include: Circuit City, Target, Rite-Aid, Eckerd Drug, Barnes & Noble, Staples, Giant Foods, and Burlington Coat Factory. (Dowd Tr. 34-36, 134-135; Thorne Tr. 251, 269.) Checkpoint also sells its EAS products to smaller companies and smaller regional and local retailers. (Dowd Tr. 64; Thorne Tr. 275.) Plaintiffs EAC, POS monitoring, and CCTV products, however, constitute less than a 10% component of Checkpoint’s business. (Dowd Tr. 35; Wagner Tr. 147.) Revenues for Checkpoint’s EAC products were expected to be $15 million in 1999 (Wagner Tr. 234), which constitutes three percent of Checkpoint’s gross revenues but at least five percent of Checkpoint’s profits. (Wagner Tr. 244.) Access control sales are estimated in 1999 at $15 million annually, a tiny fraction of plaintiffs total postmerger sales. (Wagner Tr. 164, 234-35.) 4. Major competitors and relative market shares In the article surveillance (EAS) area, plaintiffs market share of domestic EAS sales is 30% (Dowd Tr. 38.), but it dominates the drug store segment with over 70% of that market. (Thorne Tr. 267.) Plaintiffs biggest competitor in the U.S., Sensormatic Electronics Corporation (“Sensormatic”), has 45% of the market. In the access control (EAC) area, on the other hand, Checkpoint has at least 25 competitors, and its market share is small. (Wagner Tr. 192.) Plaintiff also sells access control products through independent distributors. (Wagner Tr. 171.) Plaintiff has many tens of thousands of customers. (Dowd Tr. 108.) Its alarm business alone has 50,000-60,000 customers. (Upshur Tr. 406.) 5. Marketing techniques, advertising and trades shows Checkpoint promotes its products primarily through direct mailings to security systems dealers, trade shows, advertisements, its direct sales force, and its Internet website. (Dowd Tr. 53; Wagner Tr. 185; Thorne Tr. 285.) Plaintiff spends approximately eight million dollars annually on advertising and marketing (Thorne Tr. 275, 285), which is over two percent of its 1998 revenues. All of its advertising and promotional materials prominently display the CHECKPOINT mark and are for products and systems under the CHECKPOINT mark and name. (Dowd Tr. 53; PX-3; PX-4; PX-23; PX-26; PX-27.) Checkpoint uses its name in, inter alia, press releases and promotional materials to further Checkpoint’s business among the relevant public. (Dowd Tr. 53.) Plaintiffs employees attend hundreds of trade shows each year, including Comdex, the annual American Society of Industrial Security (“ASIS”) trade show and conference, and ScanTech. (Dowd Tr. 53; Knick Tr. 335.) Plaintiff also promotes its products at the National Retail Federation Show, the FMI Technology Show (for food marketers), and the International Security Conference. (McCrie Tr. 776; PX-90.) Checkpoint attends trade shows where it is not necessarily exhibiting its products to collect information on market trends, determine what products are of interest to potential customers, and determine what products Checkpoint might be able to integrate into its own products. (Thorne Tr. 286.) Plaintiff has employed a public relations firm for the last eleven years. (Dowd Tr. 59-60.) Checkpoint sends public relations mailing to approximately forty (40) publications, including publications of general interest, financial-related magazines, and publications concerned with both physical and computer corporate security. (Dowd Tr. 59-60.) The two magazines in which Checkpoint concentrates the majority of its advertising are Security and Today’s Facility Manager. (Wagner Tr. 187; PX-13.) With the introduction of Checkpoint’s RFID products, Checkpoint is advertising in Automatic ID News (Upshur Tr. 396-97; PX-129), the primary information resource for automated data capture and communications (ADC) decision-makers who make technology decisions to enable the seamless collection of data and its integration into software applications and the enterprise computing infrastructure. (Upshur Tr. 397.) Plaintiff also advertises in publications targeted to specific vertical retail markets, such as Modem Mass Merchandiser and Supermarket News. (Wagner Tr. 187-88.) Security is directed to the security industry, generally, and contains advertisements for the products of Checkpoint and others that manufacture physical security systems, and, to a much lesser extent, for companies manufacturing information security products. (Wagner Tr. 189-90; Ol-hausen Tr. 520; PX-13; PX-118.) Security magazine covers such topics of interest to security managers as security hardware, security managerial issues, and training. It also contains articles on information security, at times mentioning firewalls. (Somerson Tr. 426; PX-118 at 17; PX-124 at 7.) As a result of Checkpoint’s efforts, there is strong brand recognition in the “CHECKPOINT” mark and name in connection with physical retail security products. (See Dowd Tr. 91.) The “CHECKPOINT” mark and name are, along with plaintiffs proprietary information, among plaintiffs most valuable corporate assets. (Dowd Tr. 91.) 6. Sophistication of purchasers, sales modes, time cycles, and end-user interaction In selling its products, Checkpoint sells almost entirely through its own sales personnel and independent representatives. In marketing its electronic article surveillance (“EAS”) systems, its principal product, plaintiff relies on its internal sales force,-which consists of approximately 160 sales representative throughout the United States. (DX-22.) Plaintiffs access control products are sold mostly through a system of approximately 150 distributors around the country that sell a wide array of physical security products, such as closed circuit television and alarm systems. (Thorne Tr. 276; Wagner Tr. 171.) Plaintiffs newly launched RFID product is being sold through independent distributors, or VARs. (Upshur Tr. 404-05.) End users often call Checkpoint with support questions. (Wagner Tr. 170-71; Knick Tr. 332-33.) Checkpoint also cross-sells its product lines to existing customers, allowing Checkpoint to build upon already established relationships. (Dowd Tr. 69; Thorne Tr. 286.) Plaintiffs products tend to serve specialized needs and are often quite costly. The prices and time cycles for sales vary depending on the product and the customer. For example, EAS systems cost, at the lowest level, between $2,000 to $5,000, plus the cost of necessary tags. (Thorne Tr. 260-61, 289.) In the small secondary market, the pricing of used EAS systems ranges from one-fifth to one-half of the original price. (Thorne Tr. 289-90.) Large retailers, such as Dayton Hudson, might spend upwards of $20 million per year on plaintiffs EAS products. (Dowd Tr. 63-64.) The typical sales cycle for plaintiffs EAS products can be relatively brief for small, single stores, but “months, if not years” for large corporations. (Thorne Tr. 277.) The typical sales cycle for an access control system, on the other hand, is 3-4 months, and runs up to a year, though it may occasionally be much shorter. (Wagner Tr. 177.) RFID product projects typically run between $80,000 and $140,000, and the typical sales cycle for plaintiffs RFID products is 3-6 months. (Upshur Tr. 410.) Checkpoint’s Sales Engineer accompanies dealers in meetings with end users of Checkpoint’s EAC products. (Knick Tr. 331.) In such meetings, Mr. Knick meets with corporate security directors, but “increasingly, MIS personnel will be in that meeting because we’re now working across the customer’s LAN with our Windows based products.” (Knick Tr. 331.) Members of MIS groups often question Mr. Knick on the bandwith Checkpoint’s products take up on a network and whether the systems can be deployed remotely. (Knick Tr. 334.) In marketing and selling its products, Checkpoint has few dealings of importance with the information security personnel of a customer. Checkpoint may deal with MIS personnel when there is the occasional need to integrate Checkpoint’s computer-based products with the other systems of the end user. (Dowd Tr. 62; Wagner Tr. 217; Thorne Tr. 279.) Additionally, when the sales cycle is slightly longer because of the need to discuss ability to integrate Checkpoint’s product with preexisting products, there is discussion with a customer’s MIS department, loss prevention department, operations department, and finance department, all of whom are impacted by the deployment of a security system. (Thorne Tr. 277-78.) The MIS personnel typically become involved with the purchasing decision later in the sales cycle, after plaintiff has been identified as a vendor. (Knick Tr. 353; Wagner Tr. 169-70; Thorne Tr. 278-81.) MIS personnel are sometimes seen as a nuisance and potential disruptor of the sales cycle. (Thorne Tr. 280; Wagner Tr. 169.) MIS personnel are not the ones who “opened the door to Checkpoint to get [them] in....” (Thorne Tr. 306.) As a rule, Checkpoint is not directing its sales pitch toward information security personnel. The customer’s concern is instead merely to assure that plaintiffs product, if purchased, does not interfere with the existing computer network. Nonetheless, Checkpoint occasionally deals with the customer’s CIO or MIS personnel (Dowd Tr. 63; Wagner Tr. 217), particularly when Checkpoint’s products are used to collect data or transfer the data back to a remote location. (Thorne Tr. 279-80.) For example, Checkpoint recently completed a sale with Kroeger Company. The key negotiator for Kroe-ger was its CIO. (Dowd Tr. 62-63.) Checkpoint has dealt with the CIO for Dayton-Hudson Corporation (Dowd Tr. 63-64) and has interfaced with the Vice President of Store Information Security for Target (Thorne Tr. 281). Checkpoint also works with other companies to ensure that its product may be integrated with third party products. (Thorne Tr. 290-91.) Two of these companies are NCR (an OP-SEC partner of defendant) and IBM. (Id.) Plaintiff also interfaces with end users of its products by providing classes to help them understand how Checkpoint’s product is incorporated across corporate networks for purposes of data integrity production, data backup, and integration with other products. (Knick Tr. 328-29.) Craig Knick has recently taught classes as Exodus Communications in California, Bo-mabardia Financial in Florida, and Alliance Capital and KBC Bank in New York City. (Knick Tr. 329.) The attendees of the classes include security personnel and MIS personnel. (Id.) Additionally, there is a “secondary market” or “after market” for Checkpoint’s retail store physical security systems. (Thorne Tr. 272.) There is no evidence of an aftermarket for Checkpoint’s other products. B. Defendant -and its business 1. History and founding of company Defendant Check Point Software Technologies, Inc. (“CPS”) is a Delaware corporation with its principal place of business at Three Lagoon Drive, Suite 400, Redwood City, CA 94065, although, like Checkpoint, it has regional offices throughout the United States. (Mitra Tr. 940.) It is a wholly-owned subsidiary of Check Point Software Technologies, Ltd. (“Check Point Software Ltd.”), an Israeli company headquartered in Ramat-Gan, Israel. (DX-54 at 2.) The Israeli parent’s stock is publicly traded on NASDAQ. Today, Check Point Software Ltd., which is not a defendant in this case, manufactures products that deliver policy-based solutions for network security, traffic control, quality of service (“QoS”), and IP address management. (DX-54 at 11.) As explained below, defendant CPS designs and sells a firewall product which promotes and controls the transmission of electronic data from, to, and over the Internet, performing functions such as protecting a local computer network from electronic intrusion by unauthorized users. Such an electronic firewall is a sophisticated and expensive software application which must usually be bought, installed, and maintained by computer network information specialists. Check Point Software Ltd. was founded in Israel in 1993. (Kramer Tr. 1148.) Two of the founders, Gil Schwed and Shlo-mo Kramer, had served together in the Israeli army. (Id.) The company’s first office was located in a room in Mr. Kramer’s grandmother’s home. (Id.) Financing opportunities were extremely limited at that time because of skepticism that the Internet would have any serious commercial application. (Id.) From its inception, the company used the name “Cheek Point Software.” (Kramer Tr. 1158-59.) Mr. Kramer testified that the name was selected in the spring of 1993 in a brain-storming session at which those present were looking for an appropriate name for what they were doing, selecting “Check Point” because, as Kramer testified, “essentially what we are doing is we [scanned] the network, we controlled the traffic, we are sort of the check point....” (Kramer Tr. 1159.) To Kramer, the name suggested the many check points maintained by the British mandate in Palestine before Israel’s War of Independence. (Kramer Tr. 1159-60.) At that time, Checkpoint had been doing business in Israel through a distributor using the CHECKPOINT name for at least 15 years. (Dowd Tr. 81-82.) Nonetheless, Kramer testified that he was unaware of Checkpoint’s presence in Israel. (Kramer Tr. 1162.) In any case, he certainly became aware of Checkpoint’s existence by 1993 (prior to CPS’s use of its name and mark in the United States) through Check Point Software Ltd.’s Internet domain name search for checkpoint.com. (PX-190.) Check Point Software Ltd.’s founders started with a vision that the Internet would emerge from its limited use by universities and research institutions to be used by businesses as a global communications network. (Kramer Tr. 1149.) The Internet today is such a global network made up of devices operated by several carriers around the world which provide “pipes” or communication media for data transmittal. (Mitra Tr. 942-44.) Its commercial applications have experienced explosive growth over the last five years. In the beginning of 1995, there were 10,000 to 12,000 websites; today, there are 40 to 45 million websites. (Morency Tr. 1338.) The company’s focus from the beginning was to be “network centric,” ie., to serve the needs of a growing global communications network and to add to network security. Its first software product, a “firewall” (described below), was designed to address the issue posed by a company’s private network (“intranet”) connection to a very public Internet, while preserving the privacy and integrity of its internal resources. (Kramer Tr. 1149-50.) During 1993, the three founders of Cheek Point Software Ltd. worked on the development of an improved firewall, and they began hiring full-time employees in 1994. (Kramer Tr. 1155.) After six months of work, Check Point Software Ltd. had a prototype firewall ready for beta testing in the United States. (Kramer Tr. 1150.) Beta tests were hosted by such corporations as Gillette, Lotus, and State Street Bank. (Kramer Tr. 1162.) This was the defendant’s first use of the Check Point name in the United States. (Kramer Tr. 1160.) By the spring of 1994, Check Point Software Ltd.’s firewall won the award for the best product at the leading network industry trade show, Net-world Interop, allowing the company to forge a relationship with Sun Microsys-tems. (Kramer Tr. 1160-61.) Check Point Software Ltd.’s first firewall sale was a site-license to Sun Microsystems, a pioneer in Internet technology, which soon began to include the product in its Solstice suite of networking products. (Kramer Tr. 1156,1184-85.) In 1995, Check Point Software Ltd. established CPS as its United States marketing subsidiary. (Rieman Tr. 1493, 1496.) Deborah Rieman was selected to establish CPS as a viable entity in the U.S.; CPS did not have even a single employee in the U.S. at that time. (Rieman Tr. 1603.) Rieman, who testified at trial, was involved in the decision to use “CHECK POINT” as a mark and name in the United States. (Rieman Dep. 27.) As of 1995, Sun Microsystems still sold more than 60 percent of CPS’s products, under Sun Microsystems’ private label, accounting for approximately $ 2 million in U.S. sales. (Rieman Tr. 1604, 1605-06; Kramer Tr. 1181.) Even in 1996, more than 45 percent of CPS’s products sold were still private labeled by Sun Microsys-tems and sold as “SOLSTICE FIREWALL-1.” (Rieman Tr. 1604; Kramer Tr. 1182, 1184.) CPS began to advertise in the United States under its own name beginning in the spring of 1996. (Rieman Tr. 1607.) CPS uses “CHECK POINT” as the dominant part of its name (Kramer Tr. 1158-59, 1175; DX-113), sometimes using it as two separate words (Check Point), and less often as a unitary term (CheckPoint or CHECKPOINT)'. (Rieman Tr. 1659-60.) The words “Software Technologies” also appear on CPS’s packaging, although in smaller print beneath the “Point” in “Check Point.” (DX-113.) It operates its website at the domain imuw.checkpoint.com. (DX-114(a); PX-131; PX-132; PX-133.) 2. Products sold CPS identifies itself as the market share leader for network security products. (Mi-tra Tr. 967, 1001.) In 1997, CPS expanded its product line to include computer “network management” products in addition to network security products. (O’Connor Dep. 26.) Its Internet products page lists enterprise security, access control, authentication, address translation, content security, encryption, operating system security, and router management as product functional areas. (PX-132.) CPS continues to claim the “most comprehensive suite of security products you’ll find on the market today.” (PX-132.) Its products are meant for the corporate world, not for individual or personal computer security. CPS makes no physical security products, and its network security products are software and the technical services required to install or maintain the software in the customer’s network. CPS sells two general types of products — those which perform network security functions and those which do not — although the two types of products are sometimes sold together in bundles. a. Products which perform network security functions: firewalls and VPNs CPS’s computer security products prevent unauthorized internal and external entry into the computer networks of business and institutions, and thus allow users to prevent theft of information from computer network systems. (Mitra Tr. 946, 948.) Firewalls serve as an example. A firewall is software that resides at a network’s connection point (or points) to the Internet. The firewall analyzes data streams, either allowing or disallowing data to pass based on a series of network security policies or rules. (Mitra Tr. 946; Rieman Tr. 1499-1500.) Charles Breed testified for CPS that the name “Check Point” is synonymous with firewalls. (Breed Tr. 1421-22; 1444.) CPS’s firewall products have received numerous industry awards and have a number of industry certifications, including from the ICSA (International Computer Security Association) and from the NSA (National Security Agency). (Mitra Tr. 986-88; Rieman Tr. 1517-18; DX-53; DX-81.) Firewalls protect the internal computer network by forcing computer network connections to pass through the firewall, where the connections can be examined and then accepted or rejected based on network access policy rules. (Mitra Tr. 946, 948.) During 1994 and 1995, CPS was a firewall company (Rieman Tr. 1498-1500), of which the FIREWALL-1® was the flagship product (Mitra Tr. 945.) FIREWALL-1® is characterized by CPS as an enterprise security suit that integrates access control, authentication, encryption, network address translation, content security, and auditing. (Rieman Tr. 1626; FX-181.) Although FIREWALL-1® is not sold “shrinkwrapped;” it was the first firewall software product on the market that could be installed without the end-user having to actually write any unique program (Rieman Tr. 1516-17). Firewalls cannot be purchased off the shelf at retail computer stores. A firewall is a highly specialized product. The ordinary network user is unaware of the firewall, its configuration, or its brand name. Other network security products include CPS’s virtual private networking (“VPN”) software, designed to facilitate world-wide business communications on the Internet by ensuring privacy for the communications and to prevent them from being intercepted or otherwise compromised. (Rieman Tr. 1504-05; DX-73.) In late 1997, CPS expanded its product line to include “VPN-1,” which is computer software that is essentially a firewall with encryption marketed under the CHECK POINT trademark and name. (DX-69; DX-72; Mitra Tr. 950.) The VPN is a natural point from where computer network traffic is controlled and passed on to the appropriate servers throughout the network. (Mitra Tr. 952.) Another VPN product includes “VPN-Gateway,” a computer software product which was originally named “Firewall-1 and Encryption Module.” (Mitra Tr. 1030.) In summary, defendant’s network security products are technologically advanced pieces of a computer network’s internal architecture, which are transparent to the user, whose operation and maintenance are understood only by network information specialists. b. Products which do not perform network security functions By 1997, Check Point Software Ltd. was selling network security products which interoperate with FIREWALL-1® but which themselves provide no network “security” functionality. The first such product was FLOODGATE®, which performs “bandwith” management, i.e., it allows a network manager to prioritize traffic between a computer network and the Internet to allow optimal network performance. (Mitra Tr. 972-73; DX-54 at 11; DX-72.) As enterprises began to rely more heavily on the Internet for “e-commerce” business transactions, the bandwith management of the finite “tunnel” that connects the business to the Internet became a critical network management function. (Mitra Tr. 952-53.) Another product is CONNECT CONTROL®, a “load balancing” product that enables a computer network with multiple computer servers performing identical tasks to intelligently distribute client requests evenly across servers for optimal performance. (Mitra Tr. 973; DX-54 at 11; DX-72; DX-77.) Defendant’s OPEN SECURITY MANAGER® software allows the management of “routers” from such diverse manufacturers as Cisco, 3Com, and Nortel (all OPSEC partners) from a client’s central network management console. (Mitra Tr. 969-70; DX-72; DX-76.) 3. Percent of revenues The revenues of CPS have grown from about $30 million in 1996 to about $210 million in 1999. (Kramer Tr. 1156.) The majority of CPS sales in the U.S. are for network security software products (Mitra Tr. 1004); CPS is known for its network security products — such products dominate its revenues and reputation. (Moren-cy Tr. 1360.) By the time of trial, software in the VPN-series was defendant’s leading product (Rieman Tr. 1504; Mitra Tr. 1020), holding a worldwide market share of over 40%. (Mitra Tr. 967.) 4. Major competitors and relative market shares By the time of trial, CPS held a market share in VPN technology of over 40% worldwide and more than 70% in Europe and Japan. (Mitra Tr. 967.) As of trial, defendant had more than 100,000 installations worldwide and more than 40,000 customers (Mitra Tr. 965), about one half of which are in the United States. 5.Marketing techniques, advertising, and trade shows Ms. O’Connor, CPS’s Director of Marketing Communications characterized the business as thus: “We do Internet security software, and we actually have two other product lines.” (O’Connor Dep. 26.) She spends 60-70 percent of her time on marketing CPS’s network security products. (O’Connor Dep. 69.) CPS promotes its network security products through trade shows, advertising, educational seminars, and its web site. In the summer of 1999, CPS sent a direct mailer on its VPN-1 product to two of Checkpoint’s experts, which touted CPS’ array of network security products. (PX-122; McCrie Tr. 760-61; Somerson Tr. 451-52.) Defendant’s advertising appears in PC Week, a magazine available on newsstands (O’Connor Tr. 1057), and Network World, a publication read by Checkpoint personnel (DX-82; Wagner Tr. 231-32; Knick Tr. 336). It also advertises in other computer and networking trade magazines, including Internet Week, Network World, Communications Week, and Date Communications. (O’Connor Tr. 1037, 1039-40; DX-82.) Such magazines are chosen because their articles concern defendant’s technology and because they reach IT (information technology) personnel. (O’Connor Tr. 1038-39.) The readership of the publications in which defendant advertises does not include security directors or managers (O’Connor Tr. 1060-61, 1064; O’Connor Dep. at 117-18), but does include IT managers, CEOs, and other executive management persons. (O’Connor Dep. 118.) Some of defendant’s competitors advertise in other publications, such as Info Security, in which some of plaintiffs competitors also advertise and in which CPS has been mentioned. (O’Connor Tr. 1057.) However, neither plaintiff nor its competitors advertise in any of the magazines in which defendant itself advertises. (O’Connor Tr. 1045-46; Wagner Tr. 230-31.) Conversely, defendant has never advertised in periodicals targeted towards physical security professionals and loss prevention professionals, such as Security Management, or specific vertical retail market segments such as Supermarket News. (O’Connor Tr. 1039-41; DX-82.) In addition to advertising, CPS distributes press releases to radio networks, news wires, and publications of general circulation. (Rieman Tr. 1527.) CPS’ press releases are available at CPS’ home page on the Internet. (Schick Dep. 15.) CPS seeks coverage in publications such as The Wall Street Journal and Barron’s. (O’Connor Dep. 130.) Defendant and its value added resellers (“VARs”) also promote defendant’s products at trade shows targeted at the Internet and network security markets. There is no meaningful overlap between the trade shows in which defendant participates and those in which plaintiff participates, reflecting, among other things, the separateness of the two channels. The same audience that reads the magazines in which defendant advertises attends these shows, i.e., network managers and IT professionals. (O’Connor Tr. 1047-49.) These shows include the RSA show, Net-world Interop, Internet Expo, and the Internet Service Providers Conference. (O’Connor Tr. 1047-48, 1053; Mitra Tr. 992-93; Loonkar Tr. 1092-93; DX-3; DX-13; DX-83.) Neither plaintiff nor other physical security providers exhibit at these shows (O’Connor Tr. 1049), and none of defendant’s witnesses who attend these trade shows has encountered physical security, loss prevention, or facilities personnel at a trade show. (Mitra Tr. 993; O’Connor Tr. 1050; Loonkar Tr. 1093; Breed Tr. 1437; Fish Tr. 1732.) Defendant’s employees and VARs were not familiar with ASIS or other physical security trade shows in which plaintiff participates. (Mitra Tr. 985; Loonkar Tr. 1092; Fish Tr. 1733; Kramer Tr. 1165; Lavelle Tr. 1283; O’Connor Tr. 1052.) 6. Sophistication of purchasers, sales modes, time cycles, and end-user in- . teraction Defendant’s products are almost exclusively marketed and sold through a network of value added resellers (“VARs”) that offer other network security and network management products and services. (Mitra Tr. 958; Lavelle Tr. 1271-72; Breed Tr. 1422.) More than 1,000 VARs sell defendant’s products. (DX-114A.) None of these distributors or VARs offers any of the types of physical security or inventory management products either sold by plaintiff or by other manufacturers of physical security products. (Mitra Tr. 960-61; Loonkar Tr. 1084-85; Fish Tr. 1685-86, 1689-90, 1734; Gilley Dep. at 63-64; DX-114A.) All of defendant’s VARs are required to have a background in the networking and network communications business, some dedication to network security, and a deep understanding of networking (i.e., routing) technology, including firewalls, VPN, routing protocols, and IP address management. (Mitra Tr. 959-60.) In addition, each of defendant’s VARs goes through intensive training on defendant’s products so that they know how to configure and deliver turnkey solutions to customers. (Mitra Tr. 958-59.) Each VAR, must have at least two certified CPS engineers (CCSE) per location of their business. (Mitra Tr. 960.) Some resellers of CPS’s products are not licensed, but sell CPS’s products. (Gilley Dep. 18.) Additionally, defendant sells its products to original equipment manufacturers (“OEMs”) of networking equipment such as servers and routers that embed defendant’s products in their computer hardware. Defendant’s OEMs include major manufacturers such as AT & T, Bay Networks, and Nokia, among others. (Rieman Tr. 1539.) Defendant’s products are very expensive. Customers such as Federal Express and Coca-Cola typically place multiple orders every year ranging between $40,000 and $100,000. (Mitra Tr. 992.) On defendant’s price list (DX-85), individual products (“SKUs”) range from $2,995 for a firewall for a single enforcement policy (DX-85 at 9) to $219,995 for the MetalP Enterprise Suite for 200,000 IP addresses. (DX-85 at 22.) These prices represent only the initial outlay to purchase the products and do not include the cost of the machines and services required to operate the software. These added items increase the cost between three- and five-fold over the cost of the software alone. (Mitra Tr. 991-92.) Although firewalls are becoming less expensive (Morency Tr. 1372; Sherizen Tr. 652-53; PX 100), and the price has not increased since the product was first introduced (Rieman Tr. 1631), defendant’s firewall products remain very costly, beyond the realm of routine expenditure for most customers. Typical customers of defendants’ products include, in addition to Coca-Cola and Federal Express, companies such as Home Depot, Goldman Sachs, Merrill Lynch, Solomon Smith Barney, Viacom, Pfizer, Commerce Bank, the Gap, Charles Schwab, 3Com, and Johnson and Johnson; the U.S. Department of Agriculture; NASA; Kansas Bureau of Investigation; the states of Florida, Georgia, and Texas; the governments of Bermuda, Barbados, and Puerto Rico; and the Kansas prison system. (Wagner Tr. 172-73; Mitra Tr. 940-41; Lavelle Tr. 1272; Fish Tr. 1074; Loonkar Tr. 1085.) The purchasers of defendant’s products typically are high level members of the end-user’s network management team, and include the CIO, Director of Management Information Systems (“MIS”), or Network Security Director. (Kramer Tr. 1162, 1164; Mitra Tr. 991; Loonkar Tr. 1086, 1090; Fish Tr. 1715-16; Stern Tr. 1222.) These individuals usually have high levels of training and expertise in computing and data communications. (Lavelle Tr. 1274-75; Fish Tr. 1715-18; Stern Tr. 1223-24.) Other customers include smaller companies. The VARs that distribute defendant’s products are readily available to provide professional consulting services to them for installation, training, and maintenance. (Loonkar Tr. 1074; Fish Tr. 1714; Mitra Tr. 958-59.) These smaller companies also often retain other consultants for the selection and implementation of network security solutions. (Morency Tr. 1372.) Finally, telephone companies such as AT & T and MCI-Worldcom are entering the market as Internet service providers (“ISPs”) and are offering managed security services to end-users; almost all of these companies are purchasing defendant’s software products in their network operation centers to provide those services. (Rieman Tr. 1514-15; DX-54 at 11.) The sales cycle for defendant’s products will typically take several weeks for the smaller end-users, but three to four months for larger end-users. (Mitra Tr. 990.) Defendant’s products are typically used for a 30-day evaluation period before purchase. (DX-113; Mitra Tr. 980.) Although defendant’s product was once purchased in one day, in a crisis following an attack on the enduser’s website by a “hacker,” that was an aberrational event. (Gilley Dep. at 65-66.) Almost always, such purchasing decisions are careful and deliberate, and there can be no doubt that the customer knows with whom it is dealing. Once defendant’s products are purchased, training is provided, because these software applications are complex and their functions can affect the performance of an entire computer network. A comprehensive and detañed multi-step approach is required in order to properly design, install, test, and finally implement defendant’s VPN and other network security and management products. (Loonkar Tr. 1087-89, 1101-02; Lavelle Tr. 1286-88.) In order to be able to operate the software, end-users typically take both CPS courses (CCSA and CCSE) and must make use of all six thick volumes of the manual. (Mitra Tr. 979; Fish Tr. 1720-28.) The “getting started manual” packaged with the software disk (DX-113) is not enough to install or manage the product. (Mitra Tr. 979.) The GUI of defendant’s product suites are becoming easier to navigate once the product is installed (Mitra Tr. 1020-21; Fish Tr. 1729-30; Loonkar Tr. 1103), and some simpler firewalls are becoming easier to manage (Mor-ency Tr. 1371; Sherizen Tr. 649-51; PX-99). Indeed, CPS promotes it products as being “easy to use” (O’Connor Tr. 1068), which is a relative term at best. They would be impossible for even the typical computer-literate person to understand and install without significant training or expertise in networking. The underlying technology is becoming more complex, rendering installation and management of defendant’s products more and more difficult with each new version, and making the training that much more important. (Fish Tr. 1730.) Indeed, many enrollees who take the two-day CPS certification courses do not pass (Loonkar Tr. 1082), and one CPS VAR recounted that his company is frequently called upon to remedy defective firewall installations done by other VARs. (Fish Tr. 1727.) Thus, even the expert VARs can have difficulty with these installations. In short, the persons who actually use defendant’s software products are specialists in computer networking applications, who devote time and care to the selection, installation, and maintenance of defendant’s network security products. C. Though they are major participants in different submarkets of corporate security, the parties are not competitors Both Checkpoint and CPS operate in the general realm of corporate security, if that term is broadly defined. Each manufactures products that are not strictly security products as well — plaintiff makes RFIDs, defendant makes bandwith management and network administration products — but both primarily focus on products designed to protect assets in the corporate world, physical items and persons in plaintiffs case, electronic data and network capabilities in defendant’s case. They do not directly compete with each other, for they operate in completely different segments of the broad business of corporate security: in the dominant sweep of their respective spheres, plaintiff focuses on protecting physical assets while defendant focuses on protecting the flow of electronic information. Plaintiffs sphere includes physical security and control of flow of corporate goods and people by deploying EAS, EAC, and RFID products, typically in retail commercial establishments like drugstores and supermarkets. Defendant’s sphere includes electronic information' security on corporate networks at point of connection to the Internet and within the internal corporate network (intranet). Their respective product offerings are not substitutes for each other, are expensive, specialize