Full opinion text
Ruling on Cross Motions for Summary Judgment [Doc.## 73 & 77] ARTERTON, District Judge. I. Introduction Plaintiff, Omega S.A. (“OSA”), commenced the present suit on September 27, 2000, alleging only one claim, that defendants Omega Engineering, Inc. (“OE”), Omega Press, Inc. (“OP”), and Omega Scientific, Inc. (“OS”), violated or continue to violate plaintiffs statutory rights under the Anticybersquatting Consumer Protection Act (“ACPA”) (15 U.S.C. § 1125(d)) by registering and using the internet domain names OMEGAWATCH.com and OMEGATIME.com. After protracted discovery requiring multiple rulings from Magistrate Judge Joan G. Margolis, the parties cross moved for summary judgment. By order dated September 30, 2002 [Doc. # 96], the Court denied defendants’ motion [Doc. # 73], and granted in part and denied in part plaintiffs motion [Doc. # 77], for the reasons that follow. II. Factual Background The following summarizes the undisputed facts in the summary judgment record. A. The Parties OSA markets and sells horological products, including watches, clocks, and corresponding accessories. The company holds registered trademarks for the name “Omega” and the letter “O” for use in connection with, among other things, watches, horological instruments, electronic time recording devices, and various parts and accessories related to watches. OE is a Delaware corporation with its principal place of business in Stamford, Connecticut. OE specializes in marketing industrial and scientific products used for, among other things, the control or measurement of temperature, humidity, pressure, strain, force, flow, level, pH, and conductivity. OE holds at least one registered trademark for the name “Omega” for use in connection with scientific and industrial apparatus. OP is an affiliate of OE, which operates as OE’s trade vehicle for selling technical books, software and other printed material. OP is the registered owner of the domain name OMEGAWATCH.com. OS is an affiliate of OE, which operates as a trade vehicle for the sale of scientific and technical instruments. OS is the registered owner of the domain name OMEGATIME.com. B. The Parties’ Prior Disputes Throughout the 1980s, OE and OSA had a history of disputing the scope of their respective trademark rights. During that period, the two parties signed several agreements limited to certain countries and trademark registrations. In an effort to end such disputes once and for all, in 1992, OE entered into a worldwide agreement with OSA. In 1994, the agreement was replaced by a new worldwide agreement, which was executed for and on behalf of. OSA on May 3, 1994, and OE on August 2,1994 (“1994 Agreement”). The 1994 Agreement states, in part, that both parties hereto are desirous of coming to an arrangement for the avoidance of future interference Worldwide between their respective fields of commercial operation under their Rights in respect of Trademarks consisting of or including the word OMEGA and/or the Greek letter 0 or containing elements colourably resembling either of thos[e] two elements. The 1994 Agreement settled various contested matters around the world involving OE’s and OSA’s trademarks. Among other things, OE agreed to withdraw certain oppositions against OSA and amend certain definitions of goods in OE’s trademark applications and OSA agreed to amend certain definitions of goods in OSA’s trademark applications. Relevant to the present cross motions, the 1994 Agreement also contains the following provisions: Henceforth from the signing of this Agreement and effective in all countries of the World: a. Omega Engineering Incorporated undertakes not to use, register or apply to register any trademark consisting of or containing the word Omega or the Greek letter 0 or any mark containing elements colourably resembling either of those two elements in respect of computer controlled measuring, timing and display apparatus, unless intended for science or industry. C. The Present Dispute Because the disposition of the parties’ motions turns largely on the intent underlying OP’s and OS’s registration and use of OMEGAWATCH.com and OMEGA-TIME.com domain names, defendants’ explanation of their general marketing strategy and the resulting registration and use of the offending domain names is here set out in detail: Since [the early 1990s], OE has employed a strategy of registering a variety of OMEGA domain names for marketing and defensive purposes. Although Omega Engineering uses the domain name omega.com as the primary name for entry to its Internet website, OE has also registered and uses other domain names for its marketing purposes. For example, OE uses particular domain names in advertisements to permit potential customers to access directly the web pages for products in which they have an interest, instead of forcing them to navigate from the main entrance to its Internet website. OE has also used specific domain names to track the effectiveness of its marketing by advertising in different trade journals different domain names, all leading to the same web page for a particular product. By tracking the number of sessions and time spent for each domain name, it can determine which trade journal generated more requests to view the product. From a marketing point of view, by having a large collection of OMEGA domain names, OE and its affiliates maximize the chance that a customer looking for a particular product, product type or product manual or based on an advertised feature or slogan, will be led to OE’s main web page or a particular product page, a particular product manual or specific technical data on a subject, even if the customer does not initially type in omega.com. In late 1995 and early 1996, OP and OS created advertising campaigns with associated domain names. An advertising campaign was created for technical and scientific books sold under the OP name utilizing the slogan ‘Watchword on Scientific and Technical Books.” Web pages for an Internet website featuring this advertising campaign were created, using the domain name omega-watch.com, which is a combination of the OMEGA trademark and a shortened version of the slogan “Watchword on Scientific and Technical Books.” OP registered the domain name OME-GAWATCH.com on or about December 15, 1995, and began using the domain name in approximately May, 1996. The site initially consisted of the slogan “Watchword on Scientific and Technical Books,” plus a listing of publications that were available from Omega Press. At about the same time, in 1995-96, another advertising campaign was developed for the scientific instruments OS sold using the slogan “Timely Introducing Scientific Instruments.” Web pages for an Internet website featuring this advertising campaign were also created using the domain name omegatime.com, which is a combination of the Omega trademark and a shortened version of the advertising slogan “Timely Introducing Scientific Instruments.” Omega Scientific registered the domain name OMEGATIME.com on December 15, 1995, and began using the domain name in approximately May, 1996. As originally formulated, the site contained the slogan “Timely Introducing Scientific Instruments” and a listing of scientific instruments available for purchase from Omega Scientific or Omega Engineering. On May 28, 1996, Jess M. Collen, counsel of record for OSA in the present suit, wrote Dr. William Drucker, who was apparently at that time outside counsel for OE, requesting an “immediate transfer of the rights to [OMEGAWATCH.com and OMEGATIME.com] to OSA.” Attorney Collen further wrote, “Had not your client already identified its desire to bring about an immediate fully satisfactory conclusion to this dispute ... we would by now have taken legal steps.” Sometime after July 17, 1998, defendants replaced the content of the websites located at OMEGAWATCH.com and OMEGATIME.com with the following hyperlinks and corresponding notations: If you want to buy a wristwateh, clock, or want to time a sporting event, please contact: http://vnuw. omega, ch If you are looking for Omega Engineering, Inc., world leader in process measurement and control instruments, please contact: htt/p://www. omega, com Defendants explain: More recently, the domain sites ome-gatime.com and omegawatch.com have provided links to the omega.com website where all of the products and merchandise of Omega Engineering and its affiliates are listed for sale.... This approach is consistent with the marketing strategy, described above, of using multiple domain names and websites as multiple ports of entry to a main website or to pages within the main website. Thus, defendants have continued to utilize the domain name omega-time.com as a marketing vehicle to attract customers looking for computerized timing devices and to direct them to the omega.com website where such products are sold. The defendants have also continued to use the omegawatch.com domain name to attract customers familiar with the slogan “Watchword on Scientific and Technical Books” and as a defensive tactic to protect against encroachment on the Omega name on the Web. Finally, defendants have not offered to sell OMEGAWATCH.com or OMEGA-TIME.com to plaintiff or any third party for monetary or other remuneration. III. Legal Standard for Summary Judgment Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue of fact is “material” for these purposes if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Accordingly, summary judgment may be granted “[wjhere the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Proeedurally, Rule 56 places the initial burden of production of evidence on the party moving for summary judgment to demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once that burden is met, the non-moving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Id. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(c) and (e)). “A District Court must resolve any factual issues of controversy in favor of the non-moving party,” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), mindful that “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. On the other hand, the object of Rule 56(e) “is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit,” Lujan, 497 U.S. at 888, 110 S.Ct. 3177, and therefore the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. A “mere scintilla” of evidence is not enough to defeat summary judgment, Anderson, 477 U.S. at 252, 106 S.Ct. 2505; “[i]f the evidence is merely colorable... or is not significantly probative... summary judgment may be granted.” Id. at 250, 106 S.Ct. 2505 (citations omitted). _ The District Court then determines whether to grant summary judgment, with the understanding that “[t]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party....” Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted). Stated differently, the District Court’s ultimate concern at the summary judgment stage is “whether there is a need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. 2505. Finally, summary judgment “is properly regarded not as a disfavored procedural shortcut,” Celotex, 477 U.S. at 327, 106 S.Ct. 2548, and, applying the Supreme Court’s framework in the context of the now less than three year old ACPA, district courts have granted and courts of appeal affirmed summary judgment against cybersquatters and in favor of trademark owners. See e.g., Virtual Works, Inc. v. Volkswagen of Am., Inc., 238 F.3d 264 (4th Cir.2001); People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir.2001); Domain Name Clearing Co. v. F.C.F. Inc., 16 Fed. Appx. 108, 2001 WL 788975 (4th Cir.2001) (unpublished disposition subject to Fourth Circuit Rule 36(c)); Eurotech, Inc. v. Cosmos European Travels Aktiengesellschaft, 213 F.Supp.2d. 612 (E.D.Va.2002); Int’l Bancorp, L.L.C. v. Societe Des Baines De Mer Et Du Cercle Des Etrangers A Monaco, 192 F.Supp.2d. 467 (E.D.Va.2002); Cable News Network L.P. v. CNNEWS.com, 177 F.Supp.2d. 506 (E.D.Va.2001); Victoria’s Cyber Secret Ltd. P’ship. v. V Secret Catalogue, Inc., 161 F.Supp.2d. 1339 (S.D.Fla.2001); and Mattel, Inc. v. Adventure Apparel, No. 00 CIV. 4085, 2001 WL 1035140 (S.D.N.Y. Sept. 7, 2001). IV. Discussion A. Evidentiary Challenges Both plaintiff and defendants have made numerous evidentiary challenges to each other’s submissions supporting each side’s summary judgment motion. The Court’s ultimate disposition of the parties’ cross motions moots most of these challenges. However, the Court will separately address defendants’ challenge to the sufficiency of plaintiffs proffered evidence regarding its registered trademarks because of the centrality of that evidence to resolution of plaintiffs motion. Plaintiff asserts that it has all right, title, and interest in and to seven United States registered trademarks for the marks “Omega” and/or “O” for, among other things, watches and horological instruments. In support, plaintiff provided the Court at oral argument with seven original updated trademark registrations, including Trademark Registration Nos. 566,370, 708,731, and 1,290,661, replacing older copies which had been submitted as Exhibit 1 to Plaintiffs Complaint. Number 566,370 is for the mark “Omega,” reveals the registrant as OSA with a renewal term of ten years from November 4, 1992, is stamped “Section 8 & 15,” is stamped with the seal of the United States Patent and Trademark Office, is certified as a true copy, and is signed by a certifying officer with authority from the commissioner of patents and trademarks. Numbers 578,041 and 1,290,661 are exactly the same except that both are for the mark “O” over the word “Omega”, No. 578,041 has a renewal term of ten years from July 28, 1993, and No. 1,290,661 has a renewal term of twenty years from August 21, 1984. On their face, the trademark registrations reflect that OSA has adopted and is using the trademarks for, among other things, watches (including pocket watches, wrist watches (with or without straps, bands or bracelets), pendant watches, calendar watches, and stop-watches), clocks, and computer apparatus for checking and controlling the measurement of time and distance for sporting events. Defendants argue that plaintiffs registered trademarks are inadmissible because trademark registrations appended to an unverified complaint do not constitute admissible evidence that OSA, in fact, owns the registrations or that the registrations are valid and subsisting. At oral argument, defendants did not comment on plaintiffs offer of the updated registrations. Pursuant to 15 U.S.C. § 1057(c), plaintiffs registration certificates constitute prima facie evidence of the validity and registration of OSA’s “Omega” and “0” marks, OSA’s ownership of them, and OSA’s exclusive right to use the registered marks in connection with the products mentioned therein. Moreover, the stamp “Section 8 & 15” on Trademark Registrations Nos. 566,370, Nos. 578,041, and 1,290,661, reveals that OSA’s right to use the marks displayed in those registrations has been rendered incontestable by an affidavit properly filed pursuant to 15 U.S.C. § 1065. See Trademark Manual of Examining Procedure § 1604 (2d ed.) (“When [such] affidavits do comply with statutory requirements, the copies of the registration are ... stamped [“Sec. 15 Affidavit Received”]”); see also Trademark Manual of Examining Procedure § 1605.04 (3d ed.); Chrysler Corporation v. Vanzant, 124 F.3d 210, 1997 WL 547993, at *1 n. 1 (9th Cir.1997) (unpublished opinion subject to Ninth Circuit Rule 36-3). Finally, plaintiffs copies of trademark registrations are admissible evidence under Fed.R.Evid. 201(b)(2) as a “judicially noticed fact ... capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b)(2); see Metro Publ’g, Ltd. v. San Jose Mercury News, 987 F.2d 637, 641 n. 3 (9th Cir. 1993), abrogation on other grounds recognized by Roe v. Anderson, 134 F.3d 1400 (9th Cir.1998) (“Certified copies of trademark registrations from the principal register fall within [Fed.R.Evid. 201(b)(2) ]”). Accordingly, plaintiffs trademark registration certificates will be considered under Rule 56(e). B. ACPA Congress enacted the ACPA on November 29, 1999, to “protect consumers and American businesses, to promote the growth of online commerce, and to provide clarity in the law for trademark owners by prohibiting bad-faith and abusive registration of distinctive marks as Internet domain names with the intent to profit from the goodwill associated with such marks.” Sporty’s Farm, L.L.C. v. Sportsman’s Market, Inc., 202 F.3d 489, 495 (2d Cir.2000) (quoting S.Rep. No. 106-140, at 4 (1999)). In pertinent part, the ACPA provides, A person shall be liable in a civil action by the owner of a mark.. .if, without regard to the goods and services of the parties, that person (i) has a bad faith intent to profit from that mark...; and (ii) registers, traffics in, or uses a domain name that- (I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark; (II) in the case of a famous mark that is famous at the time of the registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or ... 15 U.S.C. § 1125(d). The Second Circuit’s sole decision on the ACPA utilized a three part analysis for determining a violation of the statute, which asks sequentially: 1) whether a mark is distinctive or famous; 2) whether a domain name is identical or confusingly similar to that mark (or additionally, in the case of a famous mark, whether a domain names is dilutive of that mark); and 3) whether that domain name was registered, trafficked in, or used with a bad faith intent to profit from that mark. See Sporty’s Farm, 202 F.3d at 497-98; see also Newport Electronics, Inc. v. Newport Corp., 157 F.Supp.2d. 202, 214 (D.Conn.2001). Therefore, the elements of an ACPA claim permit a plaintiff to pursue three separate tracks of liability: 1) Distinctiveness, Identical or Confusingly Similar, and Bad Faith; 2) Famous, Identical or Confusingly Similar, and Bad Faith; and 3) Famous, Dilutive, and Bad Faith. Plaintiff argues that it has met its summary judgment burden on all three tracks, whereas defendants seek summary judgment on the grounds that no reasonable jury could find for plaintiff on the issue of bad faith, or, in the alternative, that plaintiffs claim under the ACPA is time barred by the applicable statute of limitations and/or laches. 1. Distinctive or Famous Plaintiff proceeds on the alternative theories that its marks “Omega” and “O” are both distinctive and famous. Because defendants did not move for summary judgment on the basis of either alternative element, the Court need only address at this point whether plaintiff has "demonstrated that there is no genuine issue of material fact with respect to whether its marks are . distinctive and/or famous. a.) Distinctiveness of Plaintiffs Marks For purposes of the ACPA, [Distinctiveness refers to inherent qualities of a mark and is a completely different concept from fame. A mark may be distinctive before it has been used— when its fame is nonexistent. By the same token, even a famous mark may be so ordinary, or descriptive as to be notable for its lack of distinctiveness. Sporty’s Farm, 202 F.3d at 497. In the Second Circuit, the inherent distinctiveness of a trademark is traditionally evaluated by the test promulgated by Judge Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976), pursuant to which marks are classified as either (1) generic, (2) descriptive, (3) suggestive, or (4) arbitrary or fanciful. See Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1007 (2d Cir.1995). At the low end are generic words— words that name the species or object to which the mark applies. These are totally without distinctiveness and are ineligible for protection as marks because to give them protection would be to deprive customers of the right to refer to their products by name.... One rung up the ladder are ‘descriptive marks — those that describe the product or its attributes or claims. These also have little distinctiveness and accordingly are ineligible for protection unless they have acquired ‘secondary meaning’... The next higher rung belongs to ‘suggestive marks’; these fall in an in-between category... They do not name or describe the product for which they are used, but they suggest the qualities or claims of that product.- They are more distinctive than descriptive marks, and thus are accorded trademark rights.... Nonetheless, because they seek to suggest qualities of the product, they possess a low level of distinctiveness... A mark is arbitrary or fanciful if there is no logical relationship whatsoever between the mark and the product on which it is used. However, even within the category of arbitrary or fanciful marks, there is still a substantial range of distinctiveness. Some marks may qualify as arbitrary because, they have no logical relationship to the product, but nonetheless have a low level of distinctiveness because they are common. The most distinctive are marks that are entirely the product of the imagination and evoke no associations with the human experience that relate intrinsically to the product. Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 215-16 (2d Cir.1999). Only suggestive, arbitrary, or fanciful marks are considered inherently distinctive. See Knitwaves, 71 F.3d at 1007. Finally, a registered trademark rendered incontestable by virtue of an affidavit filed under 15 U.S.C. § 1065 entitles the subject mark to a presumption that it is inherently distinctive. See Sporty’s Farm, 202 F.3d at 497 (citing Equine Techs., Inc. v. Equitech., Inc., 68 F.3d 542, 545 (1st Cir.1995)). Plaintiff argues that its “Omega” and “0” marks as used in connection with the sale and distribution of watches are inherently distinctive because they place at least at the suggestive level on the Abercrombie scale. In support, plaintiff cites the definition of “Omega” found in Merriam’s Webster’s Collegiate Online Dictionary: (1) the 24th and last letter of the Greek Alphabet (2) Last, Ending (3) a: a negatively charged elementary particle that has a mass 3270 times the mass of an electron — called also omega minus b: a very short-lived unstable meson with mass Í532 times the mass of an electron — called also omega meson. Plaintiff points out that none of the dictionary definitions of “omega” are generic terms for watches, or describe a feature or attribute of watches, time, timekeepers, or timers. Defendants nonetheless urge that OSA has failed to meet its burden of establishing that there is no triable issue of fact with respect to distinctiveness. Most of defendants’ arguments, however, address whether plaintiffs marks are famous. The Court has no doubt that the marks “omega” and “0”, as used in connection with the manufacture and sale of watches, clocks, and electronic timing equipment, are inherently distinctive. The meanings associated with the word “omega” and letter “0” do not suggest time or watches. Rather, “omega” and “0” are simply arbitrary designations for plaintiffs watches, corresponding accessories, and timing equipment. As such, the marks are distinctive within the meaning of the ACPA. As no rational trier of fact could return a verdict for defendants on this element, plaintiff is entitled to summary judgment that the marks “omega” and “0” are distinctive for purposes of the ACPA. b.) Fame of Plaintiff’s Marks Whether a mark is famous within the meaning of the ACPA is measured by the “rigorous criteria” of 15 U.S.C. 1125(c)(1), a provision originally enacted in 1996 as part of the FTDA of 1995. See Sporty’s Farm, 202 F.3d at 497 and n. 10. That statute reads in pertinent part, In determining whether a mark is distinctive and famous, a court may consider factors such as, but not limited to - (A) the degree of inherent or acquired distinctiveness of the mark; (B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used; (C) the duration and extent of advertising and publicity of the mark; (D) the geographical extent of the trading area in which the mark is used; (E) the .channels of trade for the goods and services with which the mark is used; (F) the degree of recognition of the mark in the trading areas and channels of trade used by the marks’ owner and the person against whom the injunction is sought; (G) the nature and extent of use of the same or similar marks by third parties; and (H) whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, on the principal register. In construing the meaning of ‘fame’ under the FTDA, the Second Circuit has held, Putting together the extraordinary power the Act confers on a ‘famous’ mark and the improbability that Congress intended to grant such outright exclusivity to marks that are famous in only a small area or segment of the nation, with the hints to be gleaned from the House Report [i.e. examples of famous marks are Dupont, Buick, and Kodak], we think Congress envisioned that marks would qualify as ‘famous’ only if they carried a substantial degree of fame. TCPIP, 244 F.3d at 99. In TCPIP, the district court’s preliminary injunction was vacated in part because plaintiffs evidentiary submissions to the district court failed to demonstrate the degree of fame necessary under the statute. Although the plaintiff had provided affidavit testimony that its business had grown from $100 million in sales from 87 stores in 1994 to $280 million from 228 stores operating in 27 states in 1998, and that it had expended tens of millions of dollars in advertising its mark over the previous . decade, the appellate court focused on the absence of consumer surveys, press accounts, or “other evidence of fame,” the absence of any statistics pertaining to any year before 1994, and the unsubstantiated assertions that plaintiff had used the mark for thirty years. See TCPIP, 244 F.3d at 99-100; see also Advantage Rent-A-Car, Inc. v. Enterprise Rent-A-Car, Co., 238 F.3d 378 (5th Cir.2001) (affirming district court’s determination that defendant’s slogan “We’ll Pick You Up” was not sufficiently famous for purposes of the FTDA even where defendant spent more than $130 million on advertising containing the slogan, and had used the slogan in all of the media forms in which it advertised, including commercials shown on prime time national television, major broadcast networks, and cable stations). In Avery Dennison Corp. v. Sumpton, 189 F.3d 868 (1999), a FTDA case, the Ninth Circuit not only reversed the district court’s award of summary judgment in favor of plaintiff, the trademark owner, but also remanded the case with instructions to enter summary judgment for defendants on their cross motion, concluding that, among other elements, the owner had not created a genuine issue of fact on the marks’ fame. While the appellate • court agreed that plaintiffs evidence of extensive advertising and sales, international operations, consumer awareness, and the longstanding use of the trademarks “Avery” and “Dennison” satisfied the other statutory factors, failure to proffer evidence of “whether consumers in general have any brand association with ‘Avery’ and ‘Avery Dennison’,” required the conclusion that plaintiff had failed to meet its burden in opposing summary judgment of showing a genuine issue of fact regarding its marks’ fame. Avery Dennison, 189 F.3d at 878-79. “In the instant case ... [defendant’s] sought-after customer base is Internet users who desire vanity e-mail addresses, and Avery Dennison’s customer base includes purchasers of office products and industrial fasteners. No evidence demonstrates that Avery Dennison possesses any degree of recognition among Internet users or that Appellants direct their e-mail services at Avery Dennison’s customer base.” Id. at 877-78. Although OSA recognizes that a mark is considered famous for purposes of the ACPA under the criteria laid out in 15 U.S.C. 1125(c)!, it undertakes no analysis of that subsection’s eight criteria. Plaintiffs submissions oh fame consist of a portion of the deposition testimony of Christine Sauser Rupp, a lawyer for OSA’s parent company, and the declaration of plaintiffs counsel of record regarding the marketing and advertising literature currently available on plaintiffs website with more than one hundred pages of advertising material, including posters containing Omega advertisements from the last one hundred years, advertisements in foreign languages, advertisements featuring famous people such as Pierce Brosnan and Cindy Crawford, and advertisements infonning browsers that Omega watches are not available for sale over the internet but only at one of the company’s worldwide retail locations. Reviewing income statements, Ms. Rupp testified in her deposition that OSA had “sales and advertising expenditures for the Omega brand of watches and timepieces ... in the hundreds of millions of dollars.” As an initial matter, defendants dispute whether plaintiffs proffered evidence is admissible. In the alternative, defendants argue that, even if such evidence were admissible, it would not establish the absence of genuine issue of fact as to the statutory element of fame because plaintiff fails to submit any evidence of consumer recognition of its mark, including surveys or other market research, and because of defendants’ own widespread and longstanding use of the Omega mark. The Court agrees with defendants’ alternative argument, and thus does not address the admissibility of plaintiffs proffered evidence. Accepting plaintiffs representations, plaintiffs evidence could satisfy factors (A)-(C), (H), and possibly even (D) of 15 U.S.C. § 1125(c)(1), namely, that the registered trademarks “Omega” and “0” have been used for an extended period of time in connection with the sale of watches, have had millions of dollars in advertising spent on them (since 1989), customers in the United States have purchased millions of dollars worth of Omega brand watches, and (as discussed above) the marks are both distinctive and on the principal register. However, plaintiff has offered no evidence on what appears to be the most important factor in the analysis, 15 U.S.C. § 1125(c)(1)(F), the degree of recognition of plaintiffs marks (as related to watches etc.) in the trading areas and channels of trade used by both OSA and defendants, namely the wristwateh niche market in retail stores and the market for scientific and industrial instruments on internet sales sites. See Sporty’s Farm, 202 F.3d at 497 n. 10; TCPIP, 244 F.3d at 99-100; Avery Dennison, 189 F.3d at 878-80. Plaintiff offers no consumer surveys or other evidence of fame among consumers in general. Moreover, defendants have offered affirmative evidence on factor (G) under 15 U.S.C. § 1125(c)(1), the nature and extent of the use of the Omega mark by OE. Exhibit M to the Declaration of B. Christine Riggs (“Riggs Declaration”), in house counsel to OE, establishes that OE owns a valid, subsisting, incontestable registered trademark for “Omega” in connection with temperature measurement products. Accordingly, plaintiff has not met its burden on summary judgment to establish the absence of a genuine issue of material fact regarding whether or not the “Omega” or “O” marks are famous within the meaning of the ACPA. Because plaintiff has failed to meet its burden with respect to fame, the Court does not address plaintiffs companion contention that the domain names at issue dilute its famous marks. However, inasmuch as the Court has found distinctiveness of plaintiffs mark, it proceeds to the next inquiry on plaintiffs ACPA claim. 2. Identical or Confusingly Similar The next question is whether there is a triable issue as to whether defendants’ registered domain names, OME-GAWATCH.com and OMEGATIME.com, are “identical or confusingly similar” to plaintiffs marks “Omega” and “O”. Defendants do not predicate their motion for summary judgment on this issue, and therefore, the Court considers only whether plaintiff has met its burden of establishing that no reasonable jury could conclude that the domain names are not confusingly similar to plaintiffs marks. Because it is clear that neither “OME-GAWATCH” nor “OMEGATIME” is identical to “Omega” or “0”, the Court first must determine the definition of “confusingly similar” within the meaning of the ACPA.-The Court begins by noting that, for purposes of a claim made under the ACPA, “ ‘[c]onfusingly similar’ is a different standard from the ‘likelihood of confusion’ standard for trademark infringement adopted ... in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir.1961).” Sporty’s Farm, 202 F.3d at 498 n. 11 (citing Wella Corp. v. Wella Graphics, Inc., 37 F.3d 46, 48 (2d Cir.1994)). Sporty’s Farm, with supporting citation to Wella Corp., see Sporty’s Farm, 202 F.3d at 498 n. 11, distinguishes between the Polaroid test, under which a court examines likelihood of confusion by reference to the respective products of the parties; and the ACPA, which directs that whether a domain name is confusingly similar to a trademark is to be evaluated “without regard to the goods or services of the parties.” 15 U.S.C. § 1125(d)(1)(A). The Second Circuit concluded without hesitation that “sportys.com” was confusingly similar to “sporty’s” under the ACPA. See Sporty’s Farm, 202 F.3d at 498. Accordingly, the Court examines the plaintiffs record to determine whether defendants’ domain names OMEGAWATCH and OMEGATIME are “confusingly similar” to plaintiffs trademarked “Omega” or “0” within the meaning of the ACPA by comparing solely plaintiffs marks and defendants’ domain names, including their intrinsic sound, sight, and meaning, without reference to goods or services with which the domain name is associated by the parties’ use. See also N. Light Tech. Inc. v. N. Lights Club, 97 F.Supp.2d. 96, 117-18 (D.Mass.2000), aff'd. 236 F.3d 57 (1st Cir.2001); J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 25:78(4th ed. 2002) (“In the cybersquatting context, “confusingly similar” must simply mean that the plaintiffs mark and the defendant’s domain name are so similar in sight, sound, or meaning that they could be confused.”). It is apparent that this inquiry differs somewhat from that in Sporty’s Farm, where the analysis centered on the similarity between two virtually identical words save for an apostrophe, and not, as in the present case, on the similarity of one word with its identical twin augmented by a generic term. Plaintiff submits no evidence on “confusingly similar,” but states the obvious fact that both OMEGAWATCH and OMEGA-TIME incorporate the mark “omega” plus one of two generic words, “time” or “watch”. In response, defendants point to the absence of affidavit or deposition testimony of any actual or potential viewer regarding any alleged confusing similarity, and/or survey or market research establishing confusion between the two domain names and the mark “omega”. Restricting the analysis to an evaluation of the sight, sound, and meaning of the mark and domain names themselves, and without reference to the items, products, or services on which they are used, the Court concludes, under the principles of Sporty’s and Wella, that the domain names “OMEGATIME” and “OMEGAWATCH” are confusingly similar to the marks “omega” or “0”. Although this is not a case where the domain names at issue are identical to a distinctive mark save for a misplaced or substituted letter, capitalization, or the absence of an apostrophe, the names bear such a visual resemblance that internet users would reasonably assume that the names were modified, used, approved, and/or permitted by OSA. As no reasonable jury could find for defendants on this element, plaintiff is entitled to summary judgment on the issue of “confusingly similar”. Even if the pool of names and marks that qualify as “confusingly similar” is somewhat enlarged by this conclusion that the “confusingly similar” analysis can be applied to domain names consisting of another’s mark coupled with a generic word or term, a contrary result would directly contravene Congressional intent in enacting the ACPA and would permit a cybers-quatter to evade the scope of the statute merely by adding to a distinctive or famous mark a generic term or word that has no connection to the goods or services attached to that mark by its owner. For example, a cybersquatter who sells motorcycles on a newly registered website such as dupontmotorcycles.com should not escape liability under the ACPA (assuming sufficient evidence of bad faith and mark fame or distinctiveness) by arguing that the domain name is not confusingly similar to the DUPONT mark on the grounds that the manufacture of chemicals has nothing to do with the production of motorcycles. This conclusion is consistent with the other ACPA case law thus far. In Prime Publishers, Inc. v. American-Republican, Inc., 160 F.Supp.2d. 266 (D.Conn.2001), the district court concluded after bench trial that ctvoices.com was confusingly similar to the mark “Voices”, stating, “[w]e do not believe the Defendant’s addition of a generic or geographic term such as “ct” is sufficient to distinguish the domain name from Plaintiffs protected mark.... An internet user might reasonably assume that “ct” was added to the Plaintiffs mark by the Plaintiff to identify its geographic location.” Prime Publishers, 160 F.Supp.2d. at 280 (citation omitted). In Mattel, Inc. v. Internet Dimensions, No. 99 CIV. 10066, 2000 WL 973745, at *3 (S.D.N.Y. July 13, 2000), also after bench trial, the court concluded that ‘barbiesplay-pen.com’ was confusingly similar to the mark ‘Barbie’ because: “1) both contain the name ‘barbie’; 2) the name ‘Barbie’ on the front page of the web site and the logo BARBIE both have approximately the same font, slant, size, etc.; 3) both BARBIE and ‘barbiesplaypen.com’ are inextricably associated with the verb ‘play,’ in the broad sense of the term.” In Harrods Ltd. v. Sixty Internet Domain Names, 157 F.Supp.2d. 658, 677-78 (E.D.Va.2001), affirmed in part, reversed in part 302 F.3d 214 (4th Cir.2002), the district court, after bench trial, concluded that domain names such as harrodsbank, harrodsbanking, harrodsstore, harrodssh-opping, were confusingly similar to the HARRODS mark because they bore “a visual resemblance to the Harrods mark such that consumers might think that they were used, approved, or permitted by [the trademark owner].” Id. at 677. Elaborating, the district court observed, All eighteen second-level domain names at issue combine the distinctive HARRODS trademark with other generic or geographic terms in English and Spanish. • [Defendant’s] use of such qualifiers does not diminish the similarity of the defendant Domain Names to the HARRODS mark.... A visual comparison of each of the [domain names] with the HARRODS trademark leads to the indisputable conclusion that the [domain names] are confusingly similar to plaintiffs mark and a website user would reasonably assume that the qualifier added to the HARRODS mark was one added by Harrods Limited, the trademark holder. Id. at 677-78 (citations and quotations omitted). The court “reinforce[d]” its conclusion by citing to a confirmatory survey conducted by plaintiffs expert. Id. at 678. In Ford Motor Co., 177 F.Supp.2d. at 641-42, Ford’s allegations that domain names such as 4fordparts.com and 4ford-trucks.com were confusingly similar to the Ford mark were sufficient to overcome one group of defendants’ Rule 12(b)(6) motion to dismiss. The court noted “courts consistently have found that ‘slight differences’ between domain names and registered marks, such as the addition of minor or generic words to the disputed domain names are irrelevant.” Id. at 641 (citing Victoria’s Cyber Secret, 161 F.Supp.2d. at 1351). 3. Bad Faith Intent to Profit The Court next addresses the issue of whether defendants acted with a “bad faith intent to profit” from plaintiffs marks “omega” and “0” in registering and using the domain names OMEGAWATCH.com and OMEGATIME.com. Both parties maintain that they have established in their favor that there is no genuine issue of material fact on this element. The ACPA lists nine non-exclusive factors that “a court may consider” when determining whether a person has acted with a bad faith intent to profit: (I) the trademark or other intellectual property rights of the person, if any, in the domain name; (II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person; (III) the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services; (IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name; (V) the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site; (VI) the person’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct; (VII) the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct; (VIII) the person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and (IX) the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of subsection(c)(l) of this section. 15 U.S.C. § 1125(d)(l)(B)(i). The factors “reflect indicators that, in practice, commonly suggest bad-faith intent or a lack thereof in cybersquatting cases.” Sen. Rep. No. 106-140, at 9 (1999); see Sporty’s Farm, 202 F.3d at 499 n. 13 (“ ‘[B]ad faith intent to profit’ is a term of art in the ACPA and hence should not necessarily be equated with 'bad faith' in other contexts.”). However, “the presence or absence of any of these factors may not be determinative,” Sen. Rep. No. 106-140, at 9 (1999). The Fourth Circuit has stated, “Because this evidence is so convincing, Factor (V) standing alone supports the district court’s finding of bad faith intent on the part of Harrods BA.” Harrods, 302 F.3d at 237. In its only analysis of the ACPA to date, the Second Circuit emphasized that “the most important grounds for [its] holding [of bad faith intent were] the unique circumstances of [the] case, which [did] not fit neatly into the specific factors enumerated by Congress but may nevertheless be considered under the statute.” Sporty’s Farm, 202 F.3d at 499. Thus, in granting or affirming summary judgment in favor of a mark owner on a claim under the ACPA, district and circuit courts evaluate the cybersquatter’s bad faith by reviewing the record evidence in light of both the statutory factors and the unique circumstances of each case. See e.g., Virtual Works, 238 F.3d at 268-270; Doughney, 263 F.3d at 368-69; F.C.F., 16 Fed.Appx. 108, 2001 WL 788975 at *1-2 (Unpublished Disposition Subject to Fourth Circuit Rule 36(c)); Eurotech, 213 F.Supp.2d. at 623-27; Societe, 192 F.Supp.2d. at 484-487; Cable News, 177 F.Supp.2d. at 523-27; Victoria’s Cyber Secret, 161 F.Supp.2d. at 1346-49; and Mattel, 2001 WL 1035140 at *3-6. Affidavit or declaration evidence is insufficient to survive summary judgment if it is merely colorable or not significantly probative. See e.g., Mattel, 2001 WL 1035140 at *4; Victoria’s Cyber Secret, 161 F.Supp.2d. at 1348. a.) Analysis of Bad Faith: Introduction As in Newport Electronics, “[t]he court notes at the outset that this is not the typical cybersquatting situation where a person registers a famous mark or name and then attempts to extort profits from the owner of the mark by selling the domain name.... Rather, this is a case where both parties possess [longstanding] trademark rights to some portion of the domain names in question.” 157 F.Supp.2d. at 215-16. The Fourth Circuit has provided a thorough and well reasoned bad faith analysis under the ACPA in a directly analogous situation, from which this Court takes guidance on many of the issues in the present dispute. As an initial matter, The use of an identical mark by two different companies is sometimes allowed in trademark law under the concept of ‘concurrent use’... the legislative history of the ACPA demonstrates that Congress recognized the legitimacy of concurrent use when it enacted the ACPA and did not intend to disrupt the rights of legitimate concurrent users of a mark.. .Accordingly, we should apply the bad faith factors in a manner that will not lead to a finding of bad faith registration every time a concurrent user registers a mark. Of course, even recognizing the rights of concurrent users of a mark, a legitimate concurrent user still violates the other user’s trademark rights if it uses the shared mark in a manner that would cause consumer confusion.... Harrods, 302 F.3d at 233 (citations omitted). In support of its motion, plaintiff does not undertake a systematic analysis of the statutory factors. Plaintiff argues that the marshaled evidence overwhelmingly points to defendants’ bad faith, and that defendants’ rebuttal evidence and explanations for registration and use of the two domain names are nothing more than unsupported conclusory allegations concocted to survive summary judgment. Thus, plaintiff asserts that no reasonable jury could reach a conclusion other than bad faith and it is entitled to judgment as a matter of law. Defendants not only disagree but contend that the record evidence generated by discovery, when measured against the non-exclusive bad faith statutory factors, clearly requires a grant of summary judgment in favor of them. Defendants further urge that, in addition to prevailing on any analysis of the statutory factors, this case falls squarely within the ACPA’s safe harbor provision. After scrutiny of the record, the Court concludes that both parties’ motions must be denied with respect to the issue of defendants’ bad faith intent to profit under the ACPA and the determination properly left to a jury, mindful that “at the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. b.) Analysis of Bad Faith: Unique Circumstances Looming in the background of the facts giving rise to this case is the specter of at least fifteen years of strife, acrimony, and legal battle between the parties over each party’s right to use the trademark “Omega” in their respective commercial spheres of operation. The embodiment to the end of the strife, the “worldwide agreement” reached in 1992, quickly turned illusory as the parties returned to the. table to work out and execute the 1994 Agreement. Then as now, plaintiffs business was the sale of watches and corresponding accessories. Even so, less than two years after OE inked its name to the 1994 Agreement and having never sold watches under the mark “Omega”, OP and OS, OE’s “affiliates” and “trade vehicles”, sparked the present controversy when they registered and began to use OMEGAWATCH.com and OMEGATIME.com. On the OMEGAWATCH.com and OME-GATIME.com websites, defendants posted a combined total of four pages as seen in the exhibited printouts. The three pages related to OMEGAWATCH.com were headed by the caption “OMEGA Press, Inc.”, contained the slogan “Watchword on Scientific and Technical Books” positioned just underneath the company name, described and listed for sale scientific books such as “Temperature Measurement in Engineering” and “pH Measurements”, and provided contact information for interested consumers. The one page printout related to OME-GATIME.com was headed by the caption “OMEGA Scientific, Inc.”, contained the slogan “Timely Introducing Scientific Instruments” positioned just beneath the company name, described and listed for sale five categories of scientific instruments (including “Tool Kits”, “Test Instrumentation”, “Handheld Instruments for Temperature”, “Computer and Testing Accessories”, and “Electronic Assembly Tools”), and provided contact information for interested consumers. Nowhere on the page were any sort of timing devices listed for sale. Immediately after defendants’ commencement of use of the sites, on May 28, 1996, plaintiffs counsel wrote defendants’ outside counsel, warning of litigation if defendants did not transfer both domain names to plaintiff. In selecting OMEGAWATCH.com and OMEGATIME.com ostensibly for the promotion and furthering of their own enterprise, defendants added generic terms to their trademark (an abbreviated form of their business name) that exactly described their old adversary’s primary product and that product’s primary function, but which bore no relationship whatsoever to either their own products or the products offered for sale on the newly registered websites. It would seem that the strong inference to be drawn from such evidence is that defendants acted in bad faith and not with a bona fide purpose of promoting their own business. In response, defendants explain that, in creating, registering, and using OME-GAWATCH.com and OMEGATIME.com, defendants were specifically implementing OE’s general marketing strategy. In brief, defendants maintain that, in accordance with their general marketing practices, they originally selected and registered the offending domain names in December of 1995 to feature advertising campaigns for the sale of scientific books and instruments, and then subsequently used the sites for that purpose until at least July 17, 1998. Specific to the advertising campaigns, defendants claim that they derived the domain name OMEGAWATCH.com from a combination of defendants’ trademark OMEGA plus the generic word “watch” as an abbreviation for the slogan ‘Watchword on Scientific and Technical Books;” and the domain name OMEGATIME.com from a combination of defendants’ trademark OMEGA plus the generic word “time” as an abbreviation for the slogan “Timely Introducing Scientific Instruments”. Sometime thereafter, still consistent with their marketing strategies, say defendants, they converted the websites into mere hyperlinks. In support of their explanation, defendants rely almost exclusively on the declaration testimony of Dr. Milton B. Hollander, director of OE, OP, and OS, and the attached four pages of printouts described above. Although plaintiff has pointed to both direct and circumstantial evidence of defendants’ bad faith, including their seemingly illogical explanation of the derivation of the domain names from the subject slogans, domain names which bear no relationship to defendants’ products or slogans, minimal evidence of any advertising campaigns, defendants’ disputatious past with plaintiff, and prior engagement in activity proscribed by the ACPA, the credibility of defendants’ explanation on this summary judgment record is more properly assessed by a jury, which could credit defendants’ testimony and conclude that: 1) the disputatious past between the parties and the use of generic terms highly correlated with plaintiffs business bore only a spurious relationship to defendants’ registration and use of OMEGA-WATCH.com and OMEGATIME.com; 2) although the words “watch” and “time” do not appear likely candidates for abbreviating respectively “Watchword on Scientific and Technical Books” and “Timely Introducing Scientific Instruments”, the odd abbreviations derived, for example, from the belief that cumbersome adverbial endings such as -ly lack brevity desirable in business and the fact that OE was on the watch (or lookout) for what types of books might be appropriate for sale to the scientific community; 3) all external evidence of the advertising campaigns, in which the slogans and their corresponding domain names were associated, has in fact been lost in the sands of time; 4) the original printouts of the websites and two pages of internal memoranda remain the last and only evidence that some type of advertising campaign had at one time existed; and 5) the subsequent hyperlinks were in part an attempt to offer the proverbial olive branch to plaintiff — removing any real or imagined obstacle for customers seeking watches by pointing them to plaintiffs website — and not to disguise an otherwise illegitimate purpose in registering and using the offending domain names. c.) Analysis of Bad Faith: Statutory Factors Factors (I), (II), and (VII) weigh in favor of defendants because OE holds at least one longstanding and incontestable registered trademark for the mark “Omega”, OMEGAWATCH.com and OMEGA-TIME .com incorporate the “omega” portion of each defendant’s legal name, and defendants accurately identified themselves as the registrants of OMEGA-WATCH.com and OMEGATIME.com and accurately stated their address and billing and administrative contacts when they registered these domain names. Factor (III) appears to weigh in favor of the conclusion that defendants acted in bad faith in registering and using OME-GAWATCH.com and OMEGATIME.com. Explaining Factor (III), Congress commented, “the legitimate use of the domain name in online commerce may be a good indicator of the intent of the person registering the name.” S. Rep. 106-140, at 18 (1999); H.R. Rep. 106-412, at 11 (1999). Although defendants ostensibly offered goods at both OMEGAWATCH.com and OMEGATIME.com, on the evidence discussed above, they will likely have an uphill battle to persuade a jury that such offering was either “legitimate” or, in the language of the statute, “bona fide,” and part of an “advertising campaign” to advance the offering of goods as opposed to an ad hoc creation to disguise illegitimate conduct directed against an adversary. On the present record, Factor (V) does not tip decisively in favor of defendants or plaintiff. The factor focuses on confusion created in the first instance by a carefully selected domain name that, by virtue of its similarity to a mark or the products of a mark owner, results in the diversion of customers from the mark owner’s online website. Thus, registration and use of domain names that are highly descriptive of goods offered by the mark owner but not offered by the alleged cy-bersquatter is significantly probative evidence of bad faith under this factor. See Harrods, 302 F.3d at 236. Therefore, as set forth above, defendants’ registration and use of domain names containing generic terms exactly describing plaintiffs principal product and its chief function but not descriptive of any product sold by defendants or offered at the offending websites constitutes strong evidence of defendants’ intent to divert customers from plaintiffs online location by creating a likelihood of confusion. However, more vexing is the part of Factor (V) requiring that the intent to divert be “for commercial gain.” The original websites ostensibly offered products for sale, but defendants’ replacement hyperlinks guided consumers where they wanted to go, that is, to defendants’ websites or, under defendants’ olive branch theory, to plaintiffs. On this record, a jury will have to decide whether it is persuaded by evidence that the hyperlinks were established in part to demonstrate defendants’ good faith effort to resolve the dispute referenced in plaintiffs attorney’s letter; or, among other possibilities, that defendants were really positioning themselves similarly to a retailer that strategically places particular items at the entrance to its store hoping to interest consumers who enter with the intent of purchasing other unrelated products— such that internet users seeking information on Omega watches will find the “world leader in process measurement and control instruments”, and, if intrigued, click on omega.com and browse defendants’ vast offering of scientific and industrial products. In other words, the jury will decide whether defendants’ hyperlink demonstrates good faith or that defendants used the domain names to cap-time potential customers through illegitimate channels or for some other improper economic motivation. Factor (VI) favors defendants because it is undisputed that defendants have not offered to sell OMEGAWATCH.com or OMEGATIME.com to plaintiff or any third party for monetary or other remuneration. Although defendant OE’s conduct recorded in Sporty’s Farm does constitute the type of activity described in this factor, one instance of such conduct would not fit within the statutory word “pattern.” Factors (VIII) and (IX), while nominally in favor of plaintiff, really play no part in an ACPA analysis when both parties, as here, have trademark rights to some portion of the offending domain names. Regarding the application of Factor (VIII) in the concurrent user context, the Fourth Circuit stated, This factor was intended by Congress to target the ‘practice known as warehousing, in which a cyberpirate registers multiple domain names — sometimes hundreds, even thousands — that mirror the trademarks of others... ’While registration of multiple domain names is a factor that a court may consider in determining bad faith, Congress warned that the ACPA ‘does not suggest that th