Full opinion text
DECISION AND ORDER VAN ANTWERPEN, District Judge. For nearly seven years this trademark dispute has moved back and forth between this Court and the Third Circuit Court of Appeals. As a result of the most recent partial remand from the Third Circuit Court of Appeals, we again find ourselves weighing in on the issues dividing these parties. I. BACKGROUND We begin with a brief review of the tortured history of this case. In the initial trial, we found that the use of THE MIRACLE BRA as applied to lingerie did not create a likelihood of confusion, but there was a possibility of confusion when the mark was applied to swimwear. A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 926 F.Supp. 1233, 1269 (E.D.Pa.1996) (“A & H I”). Since much work would be required to set damages, we certified our entire opinion to the Third Circuit for review, but they refused. Following a damages trial, we ruled that Defendants could not use THE MIRACLE BRA trademark with respect to swimwear unless they used a disclaimer and paid Plaintiffs a reasonable royalty. A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 967 F.Supp. 1457, 1482-83 (E.D.Pa.1997) (“A & HII ”) Both parties appealed. The Third Circuit, en banc, affirmed our finding of no likelihood of confusion with regard to lingerie but determined that the proper standard in this Circuit was now “likelihood of confusion.” A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 166 F.3d 197, 206 (3d Cir.1999) (“A & H III”). They remanded the case to us to consider whether there was a likelihood of confusion with regard to THE MIRACLE BRA swimwear. Id. The Third Circuit also directed that we examine whether the doctrine of reverse confusion was implicated in this case. Id. at 207. On remand, we found that there was no likelihood of direct confusion. A & H Sportswear Co. v. Victoria’s Secret Stores, 57 F.Supp.2d 155, 169 (E.D.Pa.1999) (“A & H IV”). That is, it was unlikely that a consumer would regard THE MIRACLE BRA swimwear as a product of A & H. Id. We then determined, under existing case law, that there were no grounds for a claim of reverse confusion. Id. at 176-178. Accordingly, we denied injunctive relief. Id. The parties appealed again. The Court of Appeals, this time in a panel decision, affirmed the decision as to our conclusion that there was no likelihood of direct confusion. A & H Sportswear Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 227 (3d Cir.2000) (“A & H V”). With regard to the claim of reverse confusion, the Court of Appeals held that we applied an incorrect test. Id. at 236. The Court remanded the case to us, directing that we apply a new ten factor test to evaluate the merits of Plaintiffs’ reverse confusion claim. Id. at 229. The Court also noted that we need not hear new evidence. Id. at 238. On January 11, 2001, Plaintiffs filed a “Motion For Hearing on Contempt and Additional Hearing.” We denied this motion in its entirety. A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 134 F.Supp.2d 668, 669 (E.D.Pa.2001) (“A & H VI”). In particular, we refused to open up the voluminous record and receive additional evidence. Id. at 681. Previously, the parties were provided with extensive opportunities to submit evidence and make arguments. From October 25 to November 3, 1995, we held a non-jury civil trial to determine the issue of liability. A & H I, 926 F.Supp. at 1235. We received into evidence over three-hundred exhibits. On May 24, 1996, we issued a nearly forty page opinion which made 75 findings of fact and 6 conclusions of law. Id. To settle the issues related to damages, we made additional findings of fact and further evaluated the evidence. A & H II, 967 F.Supp. at 1460-1483. On appeal, the case was the subject of two substantive opinions by the Third Circuit. See A & H Sportswear v. Victoria’s Secret Stores, 166 F.3d 191, 195 (3d Cir.1999) (panel decision); A & H III, 166 F.3d at 197 (en banc decision). After the case was remanded to us, we received multiple memorandums from the parties concerning the issues on remand. We then issued another substantive opinion addressing the issues of likelihood of direct and reverse confusion. A & HIV, 57 F.Supp.2d at 155. The case was appealed again. The Court of Appeals issued yet another substantive opinion which remanded the case to us again. A & H III, 166 F.3d 197. Plaintiffs then filed a motion for hearing on contempt and additional hearing on issues remanded to us. A & H VI, 134 F.Supp.2d at 669. We received extensive briefs on these issues. Although we refused to hold a hearing, allow further discovery, or receive additional evidence, we did permit the parties to file lengthy briefs and submit up to twenty five additional proposed findings of fact. Id. at 681. This Court has expended an extraordinary amount of time and devoted tremendous resources to this case, reacting to matters both properly before us and the extraneous issues the parties choose to bring up. We do not think that the parties should be able to re-open the record just because the litigation has been protracted. In addition, for the reasons set forth in our opinion of March 12, 2001, we believe that the existing record is sufficient to decide the issues before us. In A & H VI, we directed the parties to brief the issue of reverse confusion only, since our adjudication of Plaintiffs’ direct confusion claim was affirmed on appeal. 134 F.Supp.2d at 681. Thus, presently before us are: 1. Plaintiffs’ Memorandum Concerning Reverse Confusion, filed on April 11, 2001; 2. Defendants’ Memorandum Concerning the Likelihood of Reverse Confusion, filed on May 14, 2001; 3. Plaintiffs’ Reply Memorandum, filed on May 31, 2001; and 4. The parties proposed additional findings of fact and responses thereto. Before turning to these issues, we wish to make plain the fact that the sole issue before us is the likelihood of reverse confusion between the MIRACLESUIT trademark and THE MIRACLE BRA trademark as applied to swimwear. The issue of likelihood of confusion between MIRA-CLESUIT and THE MIRACLE BRA lingerie has already been settled. A & H I, 926 F.Supp. at 1263-4. There, we found that Plaintiffs had failed to show a likelihood of confusion with respect to Defendants’ use of its mark on lingerie. Id. The Third Circuit affirmed this determination. A & H III, 166 F.3d at 201-10. On remand, the Third Circuit only asked us to consider whether the doctrine of reverse confusion was implicated with respect to the swimwear. Id. at 201, 207. We limited our discussion of reverse confusion to the swimwear in A & HIV and neither the parties nor the Third Circuit disagreed with this decision. In the briefs presently before us, the parties only discuss the likelihood of reverse confusion with respect to the swimwear. In any event, we do not find that that there is a likelihood of reverse confusion with respect to Defendants’ use of THE MIRACLE BRA trademark on lingerie. As discussed more fully below* the factors looked at are the same, regardless of whether the claim is for direct or reverse confusion. Considering the relative minor changes to the Lapp factors, and in light of the extensive analysis in A & H I, we find that Plaintiffs have not shown a likelihood of reverse confusion with respect to the use of THE MIRACLE BRA trademark on lingerie. II. FACTS We will provide only a brief overview of the facts in the record since they were previously presented in multiple decisions. See, e.g., A & H I, 926 F.Supp. at 1235-54. A & H Sportswear, Co. Inc. (“A & H”) is a manufacturer of about 10 percent of the swimsuits made in the United States. Its bathing suits are made from a patented fabric designed to make the wearer look slimmer. On October 27, 1992, it received a federal trademark registration for use of the MIRACLESUIT mark for swimwear. Victoria’s Secret Stores, Inc., and Victoria’s Secret Catalogue, Inc. (collectively “Victoria’s Secret”), have sold women’s lingerie under the name THE MIRACLE BRA since 1993, holding a federal trademark registration for use of the mark with lingerie since 1994. In 1994, they introduced THE MIRACLE BRA swimwear. Later that same year, A & H commenced this litigation for trademark infringement and related claims. After suit was filed, Defendants began to use a disclaimer which stated that it was not associated with the MIRACLESUIT. Eventually, Defendants were denied a trademark registration for the use of THE MIRACLE BRA mark on swimwear by the Patent and Trademark Office (PTO). In connection with this motion the parties have also agreed to several additional findings of fact. 1. Victoria’s Secret has a well established trade name and the economic power to advertise THE MIRACLE BRA swimwear. 2. Victoria’s Secret is a wealthier, more powerful company A & H Sportswear, Inc. or Mainstream Swimsuits, Inc. 3. Victoria’s Secret was aware of the Mi-raclesuit mark for swimwear when it adopted THE MIRACLE BRA for swimwear. 4. Victoria’s Secret considered whether the adoption of the mark might result in confusion. 5. Victoria’s Secret was aware, at the time it was the junior user of the mark that the Patent and Trademark Office had “refused registration” because of “confusingly similarity between the registrant’s mark MIRACLESUIT and the applicant’s mark would cause consumer confusion as to the source” of the goods. 6. “Similarity of marks” is an important factor in determining whether there is reverse confusion. III. DISCUSSION A. Trademark Infringement Section 32(1) of the Lanham Act states: Any person who shall, without the consent of the registrant- la) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with such use is likely to cause confusion or cause mistake, or to deceive; ... shall be liable in a civil action by the registrant.... 15 U.S.C. § 1114(1). To establish infringement under this act, the trademark owner must prove that: “(1) the mark is valid and legally protectable; (2) the mark is owned by the plaintiff; and (3) the defendant’s use of the mark to identify goods or services is likely to create confusion concerning the origins of the goods or services.” Fisons Horticulture, Inc. v. Vi-goro Indus. Inc., 30 F.3d 466, 472 (3d Cir.1994); Express Sews. Inc. v. Careers Express Staffing Servs., 176 F.3d 183, 185 (3d Cir.1999) (quoting same). With regard to the first two elements, there is no real dispute that Plaintiffs’ own a valid and protectable mark. Plaintiffs’ mark is registered with the U.S. Patent and Trademark Office on the Principal Register, which is reserved for distinctive marks. Id. Pursuant to Section 7(b) of the Lanham Act, 15 U.S.C. § 1057(b), A & H’s Principal Register registration is: “prima facie evidence of the validity of the registered mark and of its registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the mark in commerce or in connection with the goods or services specified in the certificate.” Such registration also entitles Plaintiffs to: “a strong prima facie presumption that its registered mark is either not merely descriptive or, if descriptive, that secondary meaning is presumed, which amounts to the same thing.” McCarthy on Trademarks and Unfair Competition, 4th ed. § 11:43 (hereafter “McCarthy”). See Playboy Enter., Inc. v. Chuckleberry Publ’g, Inc., 687 F.2d 563, 567 (2d Cir.1982) (Principal Register registration “indicates that the mark is not merely descriptive and gives to it a strong presumption of validity”). A & H has used its MIRACLE SUIT mark for swimsuits since at least 1991. It has extensively advertised and promoted its goods under the mark. Further, there have been substantial sales of goods under the MIRA-CLESUIT mark throughout the United States, including Pennsylvania. Thus, we find that Plaintiffs have established that they own a valid and protectable mark. Having addressed the first two elements of trademark infringement, we turn to an examination of whether the Defendants’ mark is likely to create consumer confusion. B. Reverse Confusion Generally The traditional pattern of direct confusion occurs when customers mistakenly think that the junior user’s goods are from the same source as, or are connected with, the senior user’s goods. McCarthy § 23:10. Conversely, with reverse confusion, customers purchase the senior user’s goods under the mistaken impression that they are getting the junior user’s goods. Id. This is likely to occur when a person familiar with the well-known junior user first comes into contact with the lesser-known senior user and, because of the similarity of the marks, mistakenly thinks that the senior user is the same as, or is affiliated with, the junior user. Id. Rather than try to profit from the senior user’s mark, the junior user attempts to saturate the market and overwhelm the senior user. Id. The result of such action is that the senior user loses the value of the trademark, its product identity, corporate identity, control over its goodwill and reputation, and ability to move into new markets. See Commerce Nat. Ins. v. Commerce Ins. Agency, 214 F.3d 432, 444 (3d Cir.2000) quoting Fisons, 30 F.3d at 474. See also Ameritech, Inc. v. American Info. Tech Corp., 811 F.2d 960 (6th Cir.1987); Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947 (7th Cir.1992). Reverse confusion is not completely different from the more typical direct confusion claim. With both types of trademark claims, the presence, or absence, of likelihood of confusion remains the key. The law simply permits no remedy unless it can be proved in some manner that the public was likely to be confused by the defendant’s conduct. Thad G. Long & Alfred M. Marks, Reverse Confusion: Fundamentals and Limits, 84 Trademark Rep. 1, 2-3 (1994) (hereafter “Long & Marks”); Pignons v. Polaroid Corp., 657 F.2d 482, 492 n. 4 (1st Cir.1981). It is only incidental whether the confusion reflects a belief that defendant’s products or services are those of the plaintiff (likelihood of direct confusion) or a belief that plaintiffs products or services are those of the defendant (likelihood of reverse confusion). Id. C. The Lapp Test for Reverse Confusion To evaluate whether there is a likelihood of confusion, the Third Circuit has now developed a ten factor test which tracks the direct confusion test for noncompeting goods articulated in Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir.1983) (hereafter “Lapp ”). A & H V, 237 F.3d at 234. The factors we are to evaluate are as follows: 1. The degree of similarity between the owner’s mark and the allegedly infringing mark; 2. The strength of the owner’s mark; 3. The price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; 4. The length of time the defendant has used the mark without evidence of actual confusion arising; 5. The intent of the defendant in adopting the mark; 6. The evidence of actual confusion; 7. Whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media; 8. The extent to which the targets of the parties sales efforts are the same; 9. The relationship of the goods in the minds of consumers; and 10. Other facts suggesting that the consuming public would expect the prior owner to manufacture both products or to manufacture a product in the defendant’s market, or would expect that the prior owner is likely to expand into the defendant’s market. Id. As with the test for direct confusion, we must weigh all ten factors; no single one being dispositive. Id. In connection with our review of Plaintiffs’ direct confusion claim, we considered all of these Lapp factors, albeit under a slightly different framework. See A & H IV, 57 F.Supp.2d at 163; A & H V, 237 F.3d at 215-216. Four of the Lapp factors are analyzed the same for both direct and reverse confusion claims: attention expected of consumers when making a purchase (Lapp factor no. 3); the channels of trade (Lapp factor no. 7); the targets of sales efforts {Lapp factor no. 8); and the relationship of goods in consumer’s minds (Lapp factor no. 9). A & HV, 237 F.3d at 237. Our consideration of these factors is unlikely to differ from what we found when we looked at the identical factors in conjunction with the direct confusion claim. Id. The Third Circuit also noted that under the circumstances of this case, our evaluation of factors four and six, pertaining to actual confusion, was unlikely to result in us drawing new conclusions as to whom the factors favored. Id. As to the remaining Lapp factors, the Third Circuit determined that the application of these factors can differ when utilized to analyze reverse confusion claims. Id. at 236-237. Therefore, we must reconsider our prior determinations concerning: the similarity of the marks (Lapp factor no. 1); the strength of the marks (Lapp factor no. 2); the intent of Victoria Secret in adopting the mark (Lapp factor no. 5); and other relevant factors pertaining to reverse confusion (Lapp factor no. 10). Id. At the Third Circuit’s suggestion, we will discuss each factor in the same order as they appear in the Lapp test. Id. at 216. Lapp Factor 1: Similarity of The Marks Although not dispositive, the degree of similarity between marks is one of the most important of the Lapp factors. Fisons, 30 F.3d at 476; A&HV, 237 F.3d at 229; FF # 6. Where a trademark owner and alleged infringer deal in competing goods, the court rarely needs to look beyond the mark itself. Marks are confusingly similar if ordinary consumers would likely conclude that the products: “share a common source, affiliation, connection or sponsorship.” Fisons, 30 F.3d at 477. To see if this is the case, we look at the sights, sounds and meanings of the marks, and then evaluate whether these elements combine to create the same overall commercial impression. See A&HV, 237 F.3d at 229; Fisons, 30 F.3d at 478-79. When we examined the similarity of the marks in conjunction with Plaintiffs’ direct confusion claim we concluded that the distinctions between the marks weighed against a likelihood of confusion. A & H IV, 57 F.Supp.2d at 169-70. In reaching this determination, we discussed the use of housemarks by the parties, and we afforded particular weight to Defendants’ use of a disclaimer which disavowed any association with Plaintiffs’ product. Id. at 168-69. The effectiveness of the housemark and disclaimer changes in the reverse confusion context, requiring us to examine this factor anew. A&HV, 237 F.3d at 236. 1. Sight, Sound and Meaning Consistent with our evaluation of the marks in connection with the direct confusion claim, we find that the MIRACLE-SUIT mark and THE MIRACLE BRA mark are somewhat distinct in sight, sound and meaning. See A & H IV, 57 F.Supp.2d at 168. From a visual perspective, the two marks are distinct because THE MIRACLE BRA mark is presented either in “all capital block letters or in small capital letters with the letters, T, M, B alone in capital letters, while the MIRA-CLESUIT has sometimes been advertised with the initial letter M capitalized and the rest of the mark in lower-case letters in italicized script or as one word with both the M and S capitalized.” A & H IV, 57 F.Supp.2d at 167, quoted in A&HV, 237 F.3d at 217. In addition, the MIRACLE-SUIT mark is frequently accompanied by various incarnations of the slogan “Look ten pounds lighter in ten seconds!” A & H V, 237 F.3d at 217. The two marks also sound different. Id.; A & H IV, 57 F.Supp.2d at 167. They have different numbers of syllables, and the last syllable is different. A&HV, 237 F.3d at 217. “MIRACLESUIT bleeds two words together while THE MIRACLE BRA consists of three discrete words.” Id. Finally, the meanings of the marks differs slightly. A & H IV, 57 F.Supp.2d at 168. The descriptive word “bra” focuses attention on the brassiere portion of the Victoria’s Se-eret swimsuit, while the “suit” portion of Plaintiffs’ mark focuses attention on the entire swimsuit. A & H V, 237 F.3d at 217, quoting A & H TV, 57 F.Supp.2d at 166-7. The fact that there are differences in what two names suggest does not, by itself, result in a finding that the names are not confusingly similar. Fisons, 30 F.3d at 477. “A subsequent user may not avoid likely confusion by appropriating another’s entire mark and adding descriptive or non-descriptive matter to it.” Id. quoting 2 McCarthy § 23:15[8], Fisons concerned the marks Fairway and Fairway Green used on lawn care products. Id. Here, the Defendants did not appropriate Plaintiffs’ entire mark. Each mark is composed of different words. Still, the marks share the same dominant portions. Considered in isolation, the distinctions present in the sight, sound, and meaning, are not enough to weigh this factor against finding a likelihood of confusion. Beyond appearance, sound, and meaning, other things affect how a mark is likely to be perceived in the marketplace. For instance, a party’s use of a disclaimer and/or housemark in connection with the mark may affect its general commercial impression. A & H IV, 57 F.Supp.2d at 167. Although, the presence of the disclaimer and housemark are weighted less in the reverse confusion paradigm, they remain relevant to the ultimate consideration as to whether the marks can be deemed similar. A & H V, 237 F.3d at 236. We will evaluate the effect of Defendants’ disclaimer and the use of house-marks by both parties in turn. 2. Disclaimer In November 1996, Defendants voluntarily began to utilize the following disclaimer: “The Miracle Bra Swimwear Collection is exclusive to Victoria’s Secret and not associated with MIRACLESUIT by Swimshaper.” In determining that there was no likelihood of direct confusion, we found that this disclaimer created a meaningful difference between the marks. A & HIV, 57 F.Supp.2d at 169; A & H V, 237 F.3d at 230. As mentioned above, the Defendants’ disclaimer is less effective at combating reverse confusion. A & H V, 237 F.3d at 229-30. This is not to say that it is of no utility. Id. Disclaimers can be effective at dispelling consumer confusion even in the reverse confusion context. By definition, for there to be reverse confusion, the consumer would have had to come into contact with the junior user’s goods. Typically,- in becoming familiar with the Defendants’ product, consumers will be exposed to the disclaimer, and this may mitigate some consumer confusion. Id. at 230 (“if consumers are faced with the disclaimer every time they flip through the Victoria’s Secret catalogue they are less likely to forget that MIRACLESUIT is unrelated to THE MIRACLE BRA swimwear”). Nonetheless, many consumers will become familiar with Defendants’ product without being exposed to the disclaimer. A number of consumers will learn about THE MIRACLE BRA swimwear from sources beyond the control of the Defendants. In addition, no disclaimer policy is flawless. See Defs. Opp’n to A & H’s Mot. for Recons. Filed 4/6/01. Human and mechanical error will result in occasional gaps in the use of a disclaimer. Id. Even among those who view and understand the disclaimer, a number won’t recall it when they view Plaintiffs’ mark. We find ourselves unable to conclude that the Defendants’ disclaimer creates a meaningful distinction between the marks. Defendants argue that our finding that the marks were somewhat distinct in terms of sight, sound, and meaning, should lead us to conclude that the marks are not confusingly similar despite the limited utility of the disclaimer in the reverse confusion context. Defs. Br. at 14-15. Plaintiffs counter this argument by pointing to A & HTV where we stated: “Thus, solely based on the presumption that Defendants will continue to use the disclaimer when marketing THE MIRACLE BRA swimwear, we find that the two marks are not similar.” 57 F.Supp.2d at 169; A & H V, 237 F.3d at 237; Reply Br. at 4. These statements are not as contradictory as the parties suggest. In evaluating Plaintiffs’ direct confusion claim, we concluded that because there were some distinctions between the marks a disclaimer could effectively combat consumer confusion. When marks are identical and used on competing goods, a disclaimer is rarely going to be enough to weigh this factor in favor of a junior user. On the other hand, when two marks are not identical, a disclaimer can create a meaningful distinction between marks. While there are important distinctions between MIRACLESUIT and THE MIRACLE BRA, these alone are not enough for us to weigh this factor in favor of Defendants. A & H TV, 57 F.Supp.2d at 169. The Third Circuit noted our reliance on the use of a disclaimer to draw distinctions between the marks. A & HV, 237 F.3d at 229. With reverse confusion, the disclaimer, which is used only on Defendants’ goods, does not effectively address the likelihood that consumers will associate Plaintiffs’ goods with the Defendants’. 3. Housemarks Conflicting marks must be compared in their entirety, including any housemark which either party appends to its mark. McCarthy § 23:43. A junior user’s addition of a housemark to a possibly infringing mark has the potential to reduce or eliminate the likelihood of confusion. Id. With reverse confusion claims, several courts have taken a hostile stance towards a defendant’s use of a housemark; refusing to regard them as mitigating factors. See A & H V, 237 F.3d at 230 (discussing this). These courts have found that a defendant’s housemark aggravates consumer confusion because it can create a situation in which consumers begin to associate the possibly infringing mark exclusively with the junior user. See, e.g., Sands, Taylor & Wood, 978 F.2d at 960, Americana Trading Inc. v. Russ Berrie & Co., 966 F.2d 1284,1288 (9th Cir.1992). We accept the established rule that a junior user cannot justify its confusing use of another’s mark simply by tacking on its own housemark or tradename. McCarthy § 23:10. Still, a housemark should not, automatically, be considered an aggravating factor. See A & HV, 237 F.3d at 230. The better approach is to look at whether the housemark increases or decreases consumer confusion in the particular case. Id. (refusing to adopt a per se rule that housemarks are aggravating factors in the reverse confusion context). In A & H TV, we concluded that the use of the famous Victoria’s Secret housemark created “a distinct and separate impression” which diminished the likelihood of confusion. 57 F.Supp.2d at 168-69. We also found that Plaintiffs’ use of the SWIM SHAPER housemark helped to create an impression distinct from THE MIRACLE BRA. Id. at 168 n. 17. We will first evaluate the effect of Plaintiffs’ housemark, before turning to the more complicated issue of Defendants’ housemark. (a) Plaintiffs’ Housemark From its inception, Plaintiffs’ MIRA-CLESUIT trademark has often appeared in the marketplace followed by the words “by SWIM SHAPER.” A & H I, 926 F.Supp. at 1248. Hangtags affixed to the MIRACLESUIT swimsuit when it is sold in commerce variously read “MIRACLE-SUIT® by SWIM SHAPER®—Look 10 pounds lighter in 10 seconds. The ten seconds it takes to slip it on.”; or “MIRA-CLESUIT™ by SWIM SHAPER™— Look 10 pounds lighter in 10 seconds!” with the MIRACLESUIT silhouette design and the repeated phrase “Look 10 pounds lighter in 10 seconds.” Id. Mainstream's press kits promoting MIRACLE-SUIT, refer to it as “MIRACLESUIT by SWIM SHAPER” or “MIRACLESUIT from SWIM SHAPER.” Id. Nevertheless, many advertisements for MIRACLESUIT swimsuits never mention the SWIMSHA-PER mark. Id. We find that Plaintiffs’ housemark somewhat mitigates consumer confusion. Some potential purchasers will look at the MIRACLESUIT, notice the distinctive tagging and housemark, and neither Victoria’s Secret nor THE MIRACLE BRA will enter their minds. We do not think that the mitigating effect is significant though. MIRACLESUIT is the first word on the hangtag, occasionally used alone in advertisement, and the only word on the sewn in label. Id. These facts reduce the likely impact of the housemark. See TV Land, L.P. et al. v. Viacom Int’l, Inc. et al., 908 F.Supp. 543 (N.D.I11.1995). In TV Land, the Defendants planned to officially refer to their television station as “Nick at Nite TV Land.” Id. In evaluating the effect of the “Nick at Nite” housemark, the court took into consideration the fact that it was going to primarily be referred to as “TV Land.” Id. We also find that even among those consumers who are exposed to the SWIMSHAPER housemark, there will still be a likelihood of confusion. Some will not recall that Victoria’s Secret puts out THE MIRACLE BRA swimwear. Others will not realize that THE MIRACLE BRA products are available only at Victoria’s Secret. Thus, we find that although the SWIMSHAPER housemark creates some distinctions between the marks, its impact is not significant enough to weigh Lapp factor one in favor of the Defendants. (b) Defendants’ Housemark The effect of Defendants’ housemark in the reverse confusion context is less clear. Several courts have found that house-marks aggravate the likelihood of reverse confusion. See Americana Trading, 966 F.2d at 1288 (use of a housemark did not, as a matter of law, render marks dissimilar); Sands, Taylor & Wood, 978 F.2d at 960 (finding defendant’s use of a house-mark to be an “aggravation not a justification”); Robert Bruce, Inc. v. Sears, Roebuck & Co., 343 F.Supp. 1333, 1347 (E.D.Pa.1972). Other courts have held that housemarks created useful distinctions between marks, even in the reverse confusion context. See Universal Money Ctr., Inc. v. American Tel. & Tel. Co., 22 F.3d 1527, 1531 (10th Cir.1994) (finding that the AT & T housemark created a meaningful distinguish between the marks); Harlem Wizards Entm’t Basketball, Inc. v. NBA Prop., 952 F.Supp. 1084 (D.N.J.1997) (NBA trade name helped to distinguish Harlem Wizards from Washington Wizards); Worthington Foods, Inc. v. Kellogg Co., 732 F.Supp. 1417, 1440 (S.D.Ohio 1990); Packerware Corp. v. Coming Consumer Prod. Co., 895 F.Supp. 1438,1449 (D.Kan.1995). We do not think that the presence of the housemark on the Defendants product will mitigate consumer confusion. First, there is the possibility that consumers will fail to remember the mark when encountering A & H’s swimwear. A & H V, 237 F.3d at 230. In addition, the housemark reinforces the association of the word “miracle” exclusively with Victoria’s Secret. Id. (discussing this possibility). This later concern is of particular importance because it increases the possibility that Plaintiffs’ swimsuit could be seen as an imitator of the Defendants’ swimsuit. Such a result is unacceptable because Plaintiffs were the first to use “miracle” as part of a trademark for swimsuits. In reaching this conclusion, we have not come to view the Defendants’ housemark as having a singularly negative effect. Its presence does reduce the likelihood of direct confusion. A & H IV, 57 F.Supp.2d at 168. It is also relevant that Defendants have not adopted Plaintiffs’ entire mark. By this we mean that we are not comparing “Victoria’s Secret Miraclesuit” with “Miraclesuit.” Cf, Robert Bruce, 343 F.Supp. at 1341. Thus, the negative effect of the Defendants’ housemark is not as great as was present in Robert Bruce and Sands Taylor & Wood. Despite this, we cannot conclude that the extensive use of the Victoria’s Secret housemark creates a meaningful difference between the marks. 4. PTO Determination of Mark Similarity The PTO rejected THE MIRACLE BRA registration for swimwear. While the PTO’s adjudication may assist us in deciding whether trademark infringement has occurred, the decision is not binding on this court. A&HV, 237 F.3d at 221. In A & H IV, we afforded no weight to this adjudication and the Third Circuit held that it was not error to do so. Id. The PTO did not have disclaimer or the voluminous trial record available to it when it made its determination. Nor did the PTO consider the role of housemarks. Plaintiffs argue that since the disclaimer and housemarks play a lesser role in the reverse confusion context, we should now defer to the PTO’s decision regarding mark similarity. We are mindful of the general obligation of courts to avoid unnecessary conflict with the PTO. Although we find ourselves reaching the same conclusion as the PTO in connection with our evaluation of Plaintiffs’ reverse confusion claim, we did not rely on their opinion to find that the similarity of the marks weighs in favor of a likelihood of confusion. Given the fact that we are in possession of much more information than the PTO had, we continue to rely on our own evaluation of the marks. 5. Conclusion: Overall Commercial Impression We turn now to the overall commercial impression of the marks. The overall commercial impression considers the sight, sound, and meaning of the marks as well as other indicia demonstrative of the manner in which the marks are presented to the consuming public. If the overall impression created by the marks is “essentially the same, it is very probable that the marks are confusingly similar.” Jews for Jesus v. Brodsky, 993 F.Supp. 282, 302 (D.N.J.1998) quoting Opticians Ass’n of America v. Indep. Opticians of America, 920 F.2d 187,195 (3d Cir.1990). The overall commercial impression of the marks is confusingly similar. The marks are not identical, but they do share the same dominant portion. Analytic Recruiting, Inc. v. Analytic Res., LLC, 156 F.Supp.2d 499, 513-514 (E.D.Pa.2001). It is proper to give greater force and effect to the dominant feature of a mark. See A & H V, 237 F.3d at 216; Country Floors Inc. v. P’ship Composed of Gepner and Ford, 930 F.2d 1056, 1065 (3d Cir.1991); Checkpoint Sys. v. Check Point Software, 104 F.Supp.2d 427, 457 (D.N.J.2000); Birthright v. Birthright, Inc., 827 F.Supp. 1114, 1135 (D.N.J.1993). Consumers are not going to be viewing the marks side by side, and from this perspective, they are more likely to recall the ‘miracle’ portion of the marks. Id. In the direct confusion context, consumers have the disclaimer and the well known Victoria’s Secret housemark readily available to draw distinctions between the marks. These things do not carry the same weight in the reverse confusion context. The Third Circuit noted with approval, our finding that the disclaimer tipped the balance in favor of the Defendants on this factor. A & H V, 237 F.3d at 219, 229. When evaluating the similarity of the marks to determine if there was a likelihood of direct confusion, we asked ourselves whether a consumer viewing THE MIRACLE BRA bikini in the pages of the Victoria’s Secret cata-logue and with a message stating that it was not affiliated with A & H or the MIRACLESUIT would be confused as to the source of the swimwear. We concluded that such confusion was unlikely to occur. Now, we are being asked whether a consumer viewing the MIRACLESUIT might conclude that the bathing suit was either a product of Victoria’s Secret or an imitation of THE MIRACLE BRA swimwear. In this situation, consumers will not have the benefit of a disclaimer stating that it is not affiliated with THE MIRACLE BRA or Victoria’s Secret. We are mindful of the fact that disclaimers are often ignored by consumers. See Int’l Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1092-93 (7th Cir.1988). For this reason, a disclaimer can rarely cure otherwise clear cases of likely confusion. Id., Brockum Co. v. Blaylock, 729 F.Supp. 438, 445 (E.D.Pa. 1990); McCarthy § 23:51. The party seeking to avoid a finding of likely confusion on the basis of a disclaimer bears the burden of demonstrating that the disclaimer was or is likely to be effective. E.G.L. Gem Lab Ltd. v. Gem Quality Inst., Inc., 90 F.Supp.2d 277, 297 (S.D.N.Y.2000), citing Charles of the Ritz Group Ltd. v. Quality King Distrib., Inc., 832 F.2d 1317,1324 (2d Cir.1987); Home Box Office, Inc. v. Showtime/The Movie Channel, Inc., 832 F.2d 1311, 1315 (2d Cir.1987). We find that the Defendants' have not met this burden with respect to reverse confusion. Consumers are unlikely to recall Defendants’ disclaimer when they view the MIRACLESUIT. Nor does the use of housemarks eliminate the likelihood of confusion. Plaintiffs’ SWIMSHAPER housemark has not been as ubiquitously or consistently used as the Victoria’s Secret housemark. A & H I, 926 F.Supp. at 1248. This reduces the house-mark’s effectiveness at dispelling confusion. TV Land, 908 F.Supp. at 551. Even when the housemark is present, “miracle” remains the dominant portion of the marks making it the focus of consumer attention. See A & H V, 237 F.3d at 216 (more forceful and distinctive aspects of marks should be given more weight); Analytic Recruiting, 156 F.Supp.2d at 513-514; Checkpoint, 104 F.Supp.2d at 458 (noting that if the parties consistently used their additional descriptive terms and logos, the similarity between the marks would be more pronounced). As to Defendants’ housemark, it actually aggravates consumer confusion because it perpetuates the perception that “miracle” is associated exclusively with Victoria’s Secret. See A & H V, 237 F.3d at 230. Given the diminished effectiveness of the disclaimer and housemarks, the distinctions in the sight, sound, and meaning of the marks are insufficient to weigh this factor against a likelihood of confusion. Therefore, we will weigh Lapp factor number one in favor of the Plaintiffs. Lapp Factor 2: Strength of the Marks Trademark strength is a function of a mark’s distinctiveness and' commercial presence developed through use and promotion. Checkpoint Sys., 104 F.Supp.2d at 458, citing ChiChi’s, Inc. v. Chi-Mex, Inc., 568 F.Supp. 731, 736 (W.D.Pa.1983). The stronger the mark, the greater the amount of protection it is entitled. McCarthy § 11:73. We will first evaluate the parties relative commercial strength. We will then examine the conceptual strength of Plaintiffs’ mark. In A & H IV, we considered the parties relative commercial strength. Drawing on then existing precedent and traditional ideas about reverse confusion, we held that because A & H had not shown that Victoria’s Secret used its strength to overwhelm the marketplace, the doctrine of reverse confusion was not implicated. 57 F.Supp.2d at 176-78. The Third Circuit reversed, concluding that it was error to use an economic disparity test as a necessary prerequisite to finding a likelihood of reverse confusion. A & H V, 237 F.3d at 235. Nonetheless, the strength of the marks, in terms of both their commercial and conceptual strength remains a key aspect of the reverse confusion test. Id. 1. Commercial Strength With reverse confusion, the evidence of commercial strength differs from that expected with direct confusion claims. Fisons, 30 F.3d at 479. With direct confusion, the junior user is getting a free ride on the recognition value of a strong senior mark. Therefore, courts examine the relative strength of the marks to determine whether the senior user’s mark is strong enough to cause confusion. In the reverse confusion context, there is no reason to apply such a test. McCarthy § 23:10. Rather, we must evaluate the strength of the junior user’s mark so as to gauge its ability to overpower the senior user’s mark. Id.; Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127 (9th Cir.1998). We do this by looking at: (1) the commercial strength of the junior user vis a vie the senior user; and (2) any advertising or marketing campaign by the junior user that resulted in the public awareness of the junior user’s mark. A & H V, 237 F.3d at 231; Fisons, 30 F.3d at 474, 479. (a) Relative Economic Power of the Parties The parties agree that Victoria’s Secret is wealthier than the A & H Sportswear, Inc., or Mainstream Swimsuits, Inc. FF # 2. This is not to say that Plaintiffs are without commercial strength. They are not a small corporation operating in a geographically limited area. They manufacture 4 million swimsuits annually, which accounts for approximately 10% of all swimsuits sold in the United States. A & HIV, 57 F.Supp.2d at 162. About 200,000 of the swimsuits they manufacture are the MIRACLESUIT. Id. at 175. (b) Promotion of the Marks Previously, we concluded that although the Defendants spent considerably more in advertising dollars, both parties had successfully increased public awareness for their products. A & H IV, 57 F.Supp.2d at 177. The Third Circuit held that it was error for us not to specifically articulate the amount of free advertising received by the Defendants since we did note the amount of free publicity the Plaintiffs received. A & H V, 237 F.3d at 237. The Third Circuit concluded that this omission resulted in us comparing the parties on unequal terms. Id. Initially, we note that the Defendants did not receive any free publicity for THE MIRACLE BRA swimwear. They did receive free publicity in conjunction with their promotion of THE MIRACLE BRA bra. It has already been established, at trial and on appeal, that the use of THE MIRACLE BRA mark on lingerie did not infringe on Plaintiffs’ MIRACLESUIT trademark. A & H IV, 57 F.Supp.2d at 179, affd, A & H V, 237 F.3d at 227. Based on this, it would appear logical to only consider the advertising and promotion for THE MIRACLE BRA swimsuit. Def. Mem. at 17-18. The problem with this approach is that the swimwear leverages off the success of lingerie. THE MIRACLE BRA bra was heavily promoted by Victoria’s Secret and, by all accounts, the marketing campaign was a tremendous success. A & H IV, 57 F.Supp.2d at 177. THE MIRACLE BRA became “a familiar trademark in a relatively short time.” Id. Seeking to capitalize on their popular product, Defendants introduced THE MIRACLE BRA swimwear collection. Id. at 160. Unlike the lingerie, the introduction of the swimwear was not accompanied by extensive advertising or promotion. Instead, since its inception, it has been promoted almost exclusively through its appearance in the Victoria’s Secret Catalogue. Defendants neither sought, nor received, any significant free advertising for the swimwear. Defendants argue that we should ignore the free publicity received for the lingerie. Defs. Mem. at 17-19. They argue that we should only look at the meager amount of expenditures solely attributable to the swimwear. Id. Previously, we rejected such an approach when we examined the paid promotional expenses. A & HIV, 57 F.Supp.2d at 177. Instead, we concluded that a “meaningful” portion of the amount spent for lingerie should be considered as benefitting the swimwear. Id. We did not attempt to come up with some formula to try to decipher to what degree the swimwear benefitted from the lingerie promotion; nor have the parties suggested a principled approach to such an undertaking. We find that we should treat the free publicity valuations for THE MIRACLE BRA the same way that we treated the paid expenses in A & H TV: we will assume that a meaningful portion benefitted the swimwear. (1) Paid Promotional Expenses Plaintiffs requested a hearing and additional discovery on the amount the Defendants spent on advertising since 1996, the last year in which there are figures in the record. Pis. Mem. at 22. We opted to deny this request. A & H VI, 134 F.Supp.2d at 681. The Court of Appeals has not required us to revisit the issues presented here as of the present day. A & H V, 237 F.3d at 238. Rather, we have been authorized to review the evidence already presented in a new way. Id. Accordingly, we will use the expenditure figures in the record presently before us. From the launch of THE MIRACLE BRA through 1996, Victoria’s Secret Stores spent approximately $9,295,000, and Victoria’s Secret Catalogue spent $4,000,000 on advertising. A & H IV, 57 F.Supp.2d at 177. These amounts represent the total amount spent on promoting both the swimwear and the lingerie. Id. Since the swimsuit has never been extensively available from Victoria’s Secret Stores, we presume that the vast majority of advertising expenditures by the stores went to promote the lingerie. Id. Plaintiffs have also conducted extensive marketing campaigns for their product. Id. They have spent approximately $300,000 annually to advertise MIRACLE-SUIT in various forums. Id. From August 1991 to August 1995, these expenditures totaled $1,244,599. Id. (2) Comparison of Free Publicity Valuations Placing dollar values on publicity is an inexact science. Pis. Trial Ex. 315. Typically, experts employ a two step process to determine what it would cost a company to obtain the publicity it has received for free. In step one, the cost of the advertising space or broadcast time is determined. Id. This is known as the “Ad Rate.” Id. This number does not properly reflect the value of such publicity because, unlike advertising, publicity is viewed by consumers to be a more accurate and credible source of product information. Id. Logically, this positioning provides greater value to companies than simple advertising. Id. To measure the enhanced value of publicity, experts attach a multiple of between three and ten times to the Ad Rate to come up with the public relations value of the advertising. Id.; A & H I, 926 F.Supp. at 1250. Plaintiffs have received a substantial amount of free publicity. MIRACLE-SUIT swimsuits have been “featured” or mentioned in hundreds of newspaper and magazine articles throughout the country. A & H I, 926 F.Supp. at 1250. A video news release, created by A & H, was placed with more than twenty local and five national TV programs. See PL’s Trial Ex. 10. Such publicity has an approximate three year residual effect. A & H I, 926 F.Supp. at 1250. The publicity campaign for MIRACLESUIT swimsuits was apparently successful because it increased the number of “consumer impressions” from twenty-three million in 1992 to more than 142 million by 1995. Id. at 1250. The public relations value of this publicity is as follows: Media_Number_Ad Rate_PR Rate Print 83 (out of a total of _335 articles)__ $476,009.91 $1,430,458.00 Television_17 (out of 59 spots)_$ 83,622.99_$ 250,868.97 Radio_not available_not available_not available Total_$559,632,90_$1,681,326.97 Source: Pis. Trial Ex. 333. Defendants also received free publicity but comparing it to that received by the Plaintiffs is difficult. As explained above, the publicity focused on the lingerie, not the swimwear. The successful public relations campaign orchestrated by Victoria’s Secret Stores, preceded the expansion of the mark into swimwear. As to Victoria’s Secret Catalogue, it does not produce press kits and its only advertising is the catalogue itself. A & HII, 967 F.Supp. at 1466. To complicate matters further, the parties used different approaches to come up with a monetary value for the free publicity they respectively received. Plaintiffs’ media expert only utilized 83 of 335 print articles and 17 of 59 television spots to come up with the advertising value for the MIRACLESUIT’s free publicity. The expert also used 3 as the multiplier to translate the “Ad Rate,” to the “PR Rate.” Meanwhile, the Defendants’ valuation for its free publicity it received, took all of the television and radio spots into consideration and used 5 as the multiplier to translate the “Ad Rate” to the “PR Rate.” To address these difficulties, the Defendants suggested that we make some calculations of our own. The Defendants proposed that we extrapolate from the findings of Plaintiffs’ expert to determine the advertising value for all the television spots and articles, not just the ones considered by the expert. After coming up with this value, Defendants argue that we should use five as the multiplier to translate the Ad Rate to the PR rate. While we understand Defendants critique of the valuation approach utilized by Plaintiffs’ expert, we are reluctant to step beyond what are properly matters for judicial interpretation and notice. As to the different multipliers used by the parties, neither side’s expert provides a justification for the multiplier selected. The report prepared by Plaintiffs’ expert simply states that it chose “the most conservative multiple of three times.” Pis. Trial Ex. 315 at 6. Defendants do not state why it utilized five as the multiplier. In light of the lack of evidence supporting either choice, we will not criticize the approach taken by either side. Instead, we will take the discrepancy into account when we compare the amounts of free publicity received by both sides. As to Defendants other concern, we are reluctant to treat all of the articles and television spots the same. Plaintiffs’ expert stated that it focused on the “top” instances of free publicity. Pis. Trial Ex. 315 at 6. It makes sense that certain articles and television spots are going to be of greater value than others. This being said, we recognize that the total value of the free publicity received by Plaintiffs was higher than the amount stated in the expert report. We note that the same is true for Defendants. Its evidence of the value of free publicity it received did not include an amount for print media. Defs. Mem. at 22. Despite our inability to compare the parties free publicity in strict quantitative terms, we are confident in our ability to make a qualitative comparison. The public relations valuation totals for THE MIRACLE BRA lingerie are as follows: Media_Number _Ad Rate_PR Rate Print_224 articles_not available_not available Radio_78 spots_$ 228,040.80_$1,140,204.00 Television_54 spots_$ 493,975.80_$2,469,879.00 Total_$1,140,204_$3,610,083.00 Source: Defendants Exhibit 23; Defendants Mem. at 22. There are two gaps in the free publicity evidence: (1) there is no valuation for the free publicity Defendants received as a result of print articles mentioning the product; (2) there is no information on whether Plaintiffs benefitted from free publicity on the radio. Despite the lack of precise symmetry in the evidence produced by both sides, it is apparent that both parties received substantial amounts in free advertising. Plaintiffs were not overwhelmed by Defendants advertising. They clearly held their own on the public relations front. MIRACLESUIT was mentioned in more articles and seen in more television spots. Although we may not be able to say for certain who received more in terms of free publicity, we are confident in concluding that both parties benefitted greatly from good PR. (3) Overall Evaluation of the Parties Promotional Campaigns Consistent with the Third Circuit’s instructions, we re-evaluated the promotional campaign undertaken by the Defendants. We find that, in light of the advertising campaign engaged in by Plaintiffs, Defendants did not saturate the marketplace with its advertising to promote THE MIRACLE BRA swimwear. In a strict numerical sense, the Defendants spent more on promoting THE MIRACLE BRA than the Plaintiffs spent promoting MIRACLESUIT. Defendants spent $13.4 million promoting THE MIRACLE BRA mark on both lingerie and swimwear and received in excess of $3.6 million in free publicity. Plaintiffs spent $1,244,599 to promote the MIRACLE-SUIT mark and received at least $1,681,326 in free publicity. A cursory glance at such numbers suggests a significant disparity. The gap is not nearly so great once several factors are taken into consideration. First, only a small portion of the amount spent by Defendants directly benefitted the swimwear. Second, Plaintiffs took a more conservative approach in valuing the free publicity it received. We continue to believe that the disparity in economic power and advertising expenditures in the case at bar “does not even begin to approach the disparity that exits in other reverse confusion cases.” A & H IV, 57 F.Supp.2d at 178, relying on, Big O Tire Dealers Inc. v. Goodyear Tire & Rubber Co., 561 F.2d 1365,1367 (10th Cir.1977) (plaintiff has net worth of $200,000 versus defendant who spent $10 million on advertising); Sands, Taylor & Wood v. Quaker Oats Co., 18 U.S.P.Q.2d 1457, 1458, 1474 (N.D.I11.1990) (plaintiff had $200,000 net worth while defendant spent $365 million to advertise over a six-year period), affd in part and rev’d in part, 978 F.2d 947 (7th Cir.1992); Fisons, 30 F.3d at 470-71 (plaintiff spends nominal amounts on advertising while in its first few months defendant had spent over $500,000 on advertising); Americana Trading, 966 F.2d at 1287 (not discussing the difference in numerical terms, but there were obvious and apparent differences in the economic power of the senior user vis a vie the junior user); Banff, 841 F.2d at 487-490 (same). Including the free publicity accorded to Victoria’s Secret THE MIRACLE BRA does not lead us to the conclusion that the Defendants overwhelmed or wiped out the market strength of the MIRACLESUIT mark. A & H spent considerable sums on advertising and received the benefit of free publicity. Its swimwear sales have steadily increased over time and the company continues to enjoy a significant share of the swimsuit market. 2. Conceptual Strength In terms of conceptual strength, the stronger the mark is, the greater the amount of protection it receives. Ameritech, 811 F.2d at 966; McCarthy § 11:73. A senior user of a conceptually weak mark will receive less protection than the senior user of a conceptually distinct mark. See A&HV, 237 F.3d at 231. Courts use a four part sliding scale scheme to classify marks as to their distinctiveness: (1) generic; (2) descriptive; (3) suggestive; or (4) arbitrary or fanciful. Marks that are suggestive, arbitrary, or fanciful are deemed inherently distinctive and are entitled to protection upon adoption. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). This classification process, in addition to being used by courts to determine whether a mark is entitled to trademark protection, is also a “useful guide in assessing the strength or weakness of a mark.” A&HV, 237 F.3d at 222, citing Express Servs., 176 F.3d at 186. A mark’s classification is not dispositive of its conceptual strength or in whose favor Lapp factor two should be weighted. Id. The Third Circuit has determined that the MIRACLESUIT mark is “at best, merely suggestive.” A&HV, 237 F.3d at 223. The record contains several examples of trademarks in actual use for apparel, fashion and cosmetic items that incorporate the word “miracle” as a part of their trademark or tradename. A & H I, 926 F.Supp. at 1258. The term is not widely used within the swimsuit market; Plaintiffs and Defendants being the only ones to do so. Id. The mark has been used in other fields, which can affect its conceptual strength. See A&HV, 237 F.3d at 223 relying on, Sun Banks of Florida, Inc. v. Sun Federal Savings & Loan Ass’n, 651 F.2d 311, 316-17 (5th Cir.1981); Triumph Hosiery Mills, Inc. v. Triumph Int’l Corp., 308 F.2d 196,199 (2d Cir.1962). A&HV suggests that we could conclude that the MIRACLESUIT mark was descriptive. 237 F.3d at 223. We think that suggestive is the proper categorization. That Plaintiffs' mark is not descriptive is shown inferentially by the fact that it is registered with the U.S. Patent and Trademark Office on the Principal Register, which is reserved for distinctive marks. Id. Section 7(b) of the Lanham Act is tracked by Section 33(a) 15 U.S.C. § 1115(a) which provides that registration on the Principal Register “shall be prima facie evidence” of the validity of the registered mark, of its registration, of the registrant’s ownership, and of the registrant’s exclusive right to use the mark on the goods specified in the registration. Courts have interpreted this section to mean that a party: “is entitled to a strong prima facie presumption that its registered mark is either not merely descriptive or if descriptive, that secondary meaning is presumed, which amounts to the same thing.” McCarthy § 11:43. See e.g., Playboy Enter., Inc. v. Chuckleberry Publ’g, Inc., 687 F.2d 563, 567 (2d Cir.1982) (PTO registration “indicates that the mark is not merely descriptive and gives to it a strong presumption of validity”). In a literal sense, MIRACLESUIT cannot be considered as descriptive of the swimwear. Making a person appear slightly thinner is not a miracle. See Checkpoint Sys., 104 F.Supp.2d at 427, 459 (“Checkpoint” has no descriptive significance when used in connection with the products at issue). The Third Circuit suggested that “miracle” may fall into a class of terms which, although technically fitting into the arbitrary or fanciful category, should actually be considered to be descriptive or generic. A&HV, 237 F.3d at 231-32. This can occur when a suggestive or arbitrary mark is used in connection with a number of different product. Id. at 222. The example given H. Lubovsky, Inc. v. Esprit de Corp., 627 F.Supp. 483 (S.D.N.Y.1986) is particularly instructive. The court explained: “if a customer saw a doll in a toy store bearing a strong familiar mark like ‘Exxon,’ he might well assume that the oil company had gone into the toy business; if, on the other hand, he saw a doll bearing a familiar but weak laudatory trademark like Merit, hie would be unlikely to assume that it is connected with the similarly named gasoline or cigarettes.” Id. at 487; see also A&HV, 237 F.3d at 231 (discussing same). We have repeatedly evaluated the distinctiveness of Plaintiffs’ mark and find that “miracle,” as applied to swimwear, should not be considered such a term. “Miracle” is not among the 5,000 most commonly used English words. A & H I, 926 F.Supp. at 1259. Its use in the apparel field is limited. Id. Even if “miracle” was considered a common word, “the significant factor is not whether the word itself is common, but whether the way the word is used in a particular context is unique enough to warrant trademark protection.” Id. quoting Fisons, 30 F.3d at 478. In Henri’s Food Products Co., Inc. v. Kraft, Inc., 717 F.2d 352 (7th Cir.1983), the seventh circuit found that the word “miracle” is fanciful, because it reveals nothing about the product. Id. at 355. We find the same to be true here, “miracle” does not reveal anything about the swimwear. A & H IV, 57 F.Supp.2d at 164. In addition, when the Defendants registered their mark, the PTO did not require them to file a disclaimer of the word “miracle” in the trademark registration. A & H I, 926 F.Supp. at 1248. This amounts to their recognition that “miracle” as a part of the phrase THE MIRACLE BRA is a protectable word. Id.; McCarthy § 11:52. This case is distinguishable from Sun Banks. There, the Fifth Circuit gave special weight to fact that 25 competing financial institutions used the word sun in their titles. 651 F.2d at 316-17. In a footnote, the court also noted the widespread use of the word “sun” in the names of other Florida businesses. 651 F.2d at 317 n. 8. The number of other products utilizing the word “miracle” as all or part of their trademarks, is a far cry from the 4,400 Florida businesses which were found to use the word sun in their titles. See id. Nor do we find cases involving common given names or surnames persuasive. See A & H V, 237 F.3d at 223-24 discussing Steve’s Ice Cream v. Steve’s Famous Hot Dogs, 3 U.S.P.Q.2d 1477, 1479, 1987 WL 124289 (T.T.A.B.1987), and S.C. Johnson & Son, Inc. v. Johnson, 116 F.2d 427, 430 (2d Cir.1940). When people choose to use their name for their business or product, they run the risk of another person with the same name deciding to do the same thing. Id. Accordingly, when surnames or given names are used, courts should be more cautious before finding that a mark is entitled to a high level of protection. Id. In the case at bar, there was “only limited evidence concerning the use of ‘miracle’ marks in the mar