Full opinion text
ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION MORROW, District Judge. On August 7, 2002, plaintiff Glow Industries, Inc. (“Glow, Inc.”) filed this action against defendants Jennifer Lopez and Coty, Inc., alleging trademark infringement, trademark dilution, and federal, California statutory and common law unfair competition. Glow, Inc. has sold bath and body products under the mark Glow since 1999, and has filed an application for federal registration of the mark that it contends is in the final stages of approval. Glow, Inc. asserts that defendants have infringed the Glow mark by initiating national sales, promotion, and advertising of an eau de toilette, lotion, and shower gel under the name “Glow by J.Lo.” Glow, Inc. seeks a preliminary injunction restraining defendants from making further use of the Glow mark pending trial on the merits. I. FACTUAL BACKGROUND Plaintiff Glow Industries, Inc., a California corporation, first used the Glow mark in commerce on February 28, 1999, in connection with the sale of “fragrant bath and body products.” It applied for a federal trademark on Glow on April 29, 1999. Terry Williamson, the founder and President of Glow, Inc., states that she “named the product line Glow because of the positive feeling the word evokes.” Glow, Inc.’s trademark application specifies that the mark is used in connection with the sale of skin soaps, bubble bath, skin lotions, skin moisturizers, and candles. Williamson states that her company’s initial offerings, as reflected in the trademark application, were “lotions, oils, shower gels, candles and bath products.” She asserts, however, that a Glow perfume was developed, tested, and sold at Glow, Inc.’s retail store in fiscal year 2000. The perfume was launched on a national scale in 2001. A. Glow, Inc.’s Use Of The Glow Mark The Glow line was sold at Glow, Inc.’s retail store in Los Angeles commencing in 1999. It was offered through the national beauty website <www.gloss.com> beginning in the Spring of 2000. Following a launch at the Paramount Hotel in New York City attended by approximately forty members of the national press in April 2000, the line was offered at Bergdorf Goodman in New York City commencing in the Fall of 2000. Glow products are currently sold at various retail establishments across the country, including: Nordstrom stores in many states; Ritz Carlton Hotels; Glow, Inc.’s own store in Los Angeles; and retail stores in California, Washington, Utah, Montana, New York, New Jersey, Pennsylvania, Illinois, Michigan, Ohio and Florida. They are also offered on Glow, Inc.’s internet site <www.glowspot.com>. The products are physically present in stores in thirteen states, and have been sold in all fifty states through boutiques, department stores, the internet, and mail order. Glow, Inc. has also participated in co-branding ventures with prominent national companies such as Reebok and the Ritz-Carleton. Williamson started Glow, Inc. using her own resources, and asserts that the company has been engaged in grass-roots marketing since its inception. Glow products have been featured in magazines such as “InStyle” (featuring Glow oversized all-natural bath cakes in February 2002; Glow bath and body products, including body oil, shower gel, and lotion in May 2001; and the Glow “Male Pail” gift basket with bath and body products for men); “Los Angeles Magazine” (featuring Glow aromatic bath products, including lotion and lip balm in July 2000); “Harper’s Bazaar” (featuring Glow aromatherapy oils in September 2002); “The Hollywood Reporter” (featuring Glow bath and body gift pails and boxes in November 2000); “Mademoiselle” (featuring Glow “naughty night pillow mist” in November 2000); “Marie Claire” (featuring Glow soaps in September 2000); “Seventeen” (featuring Glow bath truffles in September 2000); “Redbook” (featuring Glow chamomile and lavender salt scrub and Glow tub truffles in September 2000); “Gourmet” (featuring Glow mini-bundt cakes and bath truffles in July 2000); “Lucky” (featuring the Glow gardenia glowlight votive candle and Glow bath truffles in May 2002); “Entertainment Weekly” (featuring Glow bath and body products in September 2002, and mentioning this litigation); “W” (featuring Glow mini-bundt cakes and bath truffles in March 2001); and “Detour” (featuring Glow bath and beauty products as newly available at Bergdorf Goodman in New York). A November 2001 article in the “New York Times Magazine” mentions Glow, Inc.’s store as “the place for all things lotiony, bathalicious and good smelling, where nothing is made with chemicals,” while a February 2002 edition features Glow miniature bathtub bundt cakes. None of this press coverage was purchased advertising. Williamson states that a producer from the E! television network approached her in September 2001, and sought permission to use the Glow mark for a show regarding fashion and beauty to be hosted by defendant Lopez’s sister, Lynda Lopez. Williamson gave permission, and Glow products were featured on one episode of the show. Williamson was also contacted by staff for the daytime drama, “The Young and the Restless,” following cast members’ positive response to Glow gift baskets they had received. The show asked that Williamson permit it to call a fictionalized product line including makeup and perfume “Glow by Jabot.” Williamson “took this as an honor and compliment of Glow products,” and gave her consent. The storyline began to air in August 2001. Entertainment companies frequently ask Glow, Inc. to provide gift baskets to cast and crew members. Williamson asserts that a Glow gift basket was delivered to defendant Jennifer Lopez in March 2001. The invoice for the delivery indicates that the basket included sandalwood lotion, a sandalwood candle, a “CVP GLOwstick,” and a vanilla bath truffle. B. The Glow by J.Lo Product Line And Its Impact Defendant Jennifer Lopez, also known as J.Lo, is an internationally known singer, dancer, actress and fashion designer. Defendant Coty, Inc. is one of the world’s leading manufacturers and marketers of women’s and men’s fragrances, cosmetics and skin care products. On February 25, 2002, Lopez filed an application to register the trademark Glow by J.Lo for “fragrances, cosmetics, and skin care products.” On March 15, 2002, Coty, through its Lancaster Group division, entered into an exclusive worldwide licensing agreement with Lopez’s company, Sweet-face Fashion Co., LLC. The agreement contemplates the development and marketing of fragrances and cosmetics under the J.Lo brand, using the Jennifer Lopez name. Although Lancaster Group issued a press release that day, announcing the agreement, the release did not mention the Glow by J.Lo mark Catherine Walsh, Vice President of Marketing, Cosmetics and American Licenses for the Lancaster Group, states that Coty and Lopez chose the mark Glow by J.Lo “because Ms. Lopez is known for her lovely glowing skin and her inner ‘glow,’ ” and because “we also like the rhyming element of the phrase.” Coty announced the launch of the Glow by J.Lo line in June 2002. The anchor product is an eau de toilette (diluted perfume) packaged in a stylized bottle. The bottle is intended to represent the shape of “a slightly asymmetrical woman’s body.” It is draped with a necklace bearing the J.Lo design logo. The Glow by J.Lo line also includes a skin lotion and a shower gel, both of which are packaged in conventional squeeze tubes featuring the Glow by J.Lo mark. All three products are sold in white boxes featuring the Glow by J.Lo mark superimposed over replications of the J.Lo design logo. Each product has the same scent, i.e., a blend of orange flower, grapefruit, rose, sandalwood, soft amber, transparent jasmine, vanilla, musk and orris. Glow by J.Lo was launched, with extensive media coverage, on June 27, 2002, at a private apartment in the Trump Tower in New York City. The event featured a grand finale in which fireworks over the Hudson River illuminated the Glow by J.Lo mark. Defendants have since initiated an intensive U.S. consumer marketing campaign; their expenditures totaled $2.1 million by July 3, 2002, and are $5.2 million to date. ■ The first Glow by J.Lo products were shipped to stores on June 28, 2002. Plaintiffs attorney, Arthur Aaronson, states that he has personally seen numerous advertisements for Glow by J.Lo products “in magazine[s], [on] billboards, television[,] ... at shopping malls and on the internet.” According to Glow, Inc.’s Williamson, a billboard advertising Glow by J.Lo products is located approximately one mile from the Glow retail store. Williamson first became aware of Lopez’s intent to release a perfume, body lotion, and shower gel under the name Glow by J.Lo in June 2002. She then began receiving inquiries from her retail and wholesale customers, who exhibited confusion regarding the relationship between defendants and Glow, Inc. On June 21, 2002, Williamson received a fax from the “NFX Apothecary” in Florida, stating, in pertinent part: “Just a quick note with regard to something we saw in U.S. Weekly — Are you now in ‘cahoots’ with “J-Lo”? ? ? I am getting ready to order and was going to éxpand on your perfume — but — I had no idea you would tie-in with J-Lo — It doesn’t seem like your image ? ? ? I’m a bit confused? So, I will review future order with you — when I hear the scoop!” Williamson received another fax from the same party on July 19, 2002, stating in pertinent part: “FYI — I had some customers ask if your line was related to new J-Lo stuff they heard about.” Glow, Inc. also proffers notes written by employees in the Glow retail shop on August 22 and 24, 2002, which state that shop customers asked if there was an affiliation between Glow and Lopez. Williamson has recently been attempting actively to negotiate sales • arrangements with department and high visibility stores around the ■ country. She has also been involved in funding negotiations with venture capital firms and other investors so that she can expand Glow, Inc.’s presence in the marketplace. Williamson asserts that her investor group has put all plans for expansion on hold until this action is resolved. She further states that, following the launch of defendants’ “Glow by J.Lo” line “and the media blitz surrounding it,” negotiations with major department stores have been tabled, and several potential wholesale customers have advised her “that they will not carry Glow products until th[e] case is resolved.” C. The Current Litigation On July 8, 2002, Glow, Inc. attorney Arthur Aaronson sent a letter to Lopez’s trademark attorney, Lawrence Apolzon, requesting that Lopez voluntarily cease using the name Glow in connection with her planned product line. Apolzon’s partner, Lisa Pearson, sent Aaronson a letter on July 15, 2002, in which she acknowledged his correspondence and requested further information. Aaronson replied the same day; he provided a short overview of Glow, Inc.’s use of the Glow mark, enclosed a press kit, and asked whether Lopez would voluntarily cease using the Glow by J.Lo mark. On July 30, 2002, Aaronson sent a second letter requesting a response. On July 31, 2002, Pearson answered, asserting that Glow has been commonly used in the beauty industry and that Glow and Glow by J.Lo are readily distinguishable given the “crowded field.” The two attorneys conferred by telephone, but were unable to come to any resolution. Pearson contends she has told Aaronson on several occasions that her clients are open to discussing “commercially reasonable measures that could be taken to allay plaintiffs concerns.” When this subject was raised during counsels’ August 2002 telephone calls, Aaronson stated his impression that the Glow by J.Lo line was going to be launched within a few days. Pearson told him it would not be launched that soon. On August 7, 2002, Glow, Inc. filed suit against Coty and Lopez, alleging federal claims for trademark infringement, trademark infringement — reverse confusion, trademark dilution, false designation of origin, and Lanham Act unfair competition. The complaint additionally pleaded state law claims for trademark infringement, reverse confusion, dilution, unfair competition, and an accounting. Once Aaronson ascertained that Glow by J.Lo products were being advertised and sold nationwide, he wrote Pearson on September 9, 2002, requesting verification that the advertising and sales had been authorized by defendants. On September 13, 2002, Pearson responded that defendants would not postpone the Glow by J.Lo launch as a result of Glow, Inc.’s lawsuit. On September 24, 2002, Glow, Inc. filed a motion for a preliminary injunction, requesting that the court enjoin defendants’ use of the Glow mark. Defendants filed an answer and counterclaims for trademark infringement, Lan-ham Act unfair competition, and California statutory unfair competition on October 8, 2002. The counterclaims are based on Lopez’s acquisition by assignment on September 26, 2002, of all rights to and interest in the registered trademark Glow Kit. Defendants proffer evidence that they have taken steps to reduce any likelihood of confusion resulting from the similarity of the parties’ marks and product lines. Specifically, they assert that advertising for Glow by J.Lo has featured “photographs of Ms. Lopez next to the Glow by J.Lo eau de toilette bottle, in an effort to create a visual link between her physical profile and the shape of the bottle.” They also note that, “in a good faith effort to allay plaintiffs expressed concerns, [they have] instituted guidelines for Glow by J.Lo advertising to exhibit the Glow by J.Lo mark in a font of uniform size and color.” Plaintiff counters that defendants’ current advertisements do not follow these guidelines, because (1) the typeface of advertisements is the same as that which was used in advertisements running at the time the action was filed, and (2) the image of Jennifer Lopez is absent from several print and television advertisements for Glow by J.Lo. Indeed, a Glow by J.Lo television commercial proffered as evidence by plaintiff focuses visually on the term Glow, and repeats the word verbally multiple times before stating the full name of the product, Glow by J.Lo. D. Glow, Inc.’s Pending Trademark Application Glow, Inc. attorney Aaronson submitted an application to register the Glow trademark in April 1999. Defendants’ attorney Lisa Pearson states: “A review of the file wrapper for this application discloses that in an Office Action mailed November 18, 1999..., the Examining Attorney refused registration ‘because the applicant’s mark when used on or in connection with the identified goods, so resembles the marks in U.S. Registration Nos. 1,099,151 [the mark UltRA Glow for ‘skin moisturizing creme and stick’], 1,973,583 [the mark UltRA Glow for ‘cosmetic products, namely soaps, toilet soaps, bar soaps, liquid soaps, liquid toilet soaps, essential oils, skin care preparations, creams, cosmetic facial creams,' skin tone creams, skin lotions, moisturizers, cocoa butter creams and sticks, beauty bars, and facial scrubs’] and 2,288,023 [the mark Glow Kit for ‘cosmetics sold separately and as a kit, namely, alpha hydroxy acid skin creams, facial cleansing lotions, and skin creams containing vitamin A derivatives’].” Aaronson responded to this office action in January 2000, arguing that Ultra Glow was not confusingly similar to Glow because “Ultra” was not disclaimed, and therefore constituted an integral part of the registered mark. He further noted that Ultra Glow was not registered for use in connection with candles. Aaron-son also contends that he resolved the objection respecting the Glow Kit mark during a telephone conversation with the trademark examiner. He maintains that Glow Kit is “distinguishable in look, sound, and spelling” from Glow, and that it is “used only locally by a physician for a medical alpha-hydroxy skin preparation [that] has nothing to do with fragrances.” Pearson counters that an examining attorney will typically “make[ ] a notation ‘W/D’ followed by his initials in the margin of the Office Action” if and when he withdraws a blocking citation. She points out that no such notation was made on the office action regarding the Ultra Glow and Glow Kit marks. In his January 2000 letter to the Patent and Trademark Office, Aaronson amended the description of goods in the trademark application, substituting “skin soaps,” for “soaps,” and “skin moisturizers” for “moisturizers.” On April 6, 2000, the examiner accepted this proposed amendment, but suspended further action on the application pending action on Application Serial No. 75/515,208, which concerns the mark Sun Glow for “skin care preparations, namely, lotions, moisturizers, creams, toners, exfoliators, astringents, cleansers, masks, soaps, lip balms, scrubs, sun screens, sun tanning gels, sun cream, sun lotions and conditioners.” Glow, Inc.’s application for publication was finally approved on August 18, 2002, after the PTO deemed the Sun Glow mark abandoned. In September 2002, after this action had been filed, defendants’ attorney submitted a letter of protest to the PTO on Jennifer Lopez’s behalf. The letter identified several purported “irregularities in the processing” of the Glow application, namely that: (1) the November 18, 1999, block placed on the application had apparently not been removed and (2) Glow, Inc.’s January 2000 response letter did not address the examiner’s objection regarding the Glow Kit mark. On September 26, 2002, Leone A. Guilio, the owner of the Glow Kit mark, Reg. No. 2,288,028, assigned all of his right, title and interest in the mark to Jennifer Lopez. The Glow trademark was published for opposition in the Official Gazette on November 5, 2002. Defendants assert they will oppose the application, in order to reassert their earlier protest regarding “irregularities in processing,” and to make new arguments regarding possible infringement of the Glow Kit mark. The latter issue is the subject of Lopez’s counterclaims in this action. It is the PTO’s practice to suspend internal proceedings, including opposition proceedings, during the pendency of trademark infringement litigation involving the competing marks. For this reason, Pearson asserts that Glow, Inc.’s application will likely be suspended, and that the Glow mark will not be registered until there is a final adjudication of defendants’ counterclaims in this action. E. Other Products Using GLOW As A Trademark Or Trade Name There are many registered trademarks for beauty products that incorporate “glow” or variants thereof. These include marks for several make-up and hair care products, i.e., (1) Radiant Glo, issued in February 1984 for “liquid facial makeup and hair shampoo;” (2) Flame Glow, issued in January 1985 for “lip polish, blushers, blushing kit comprising blush and blusher palettes, eyeliner, eye shadow, and eye shadow kits comprising applicator and eye shadow palettes,” and in November 1985 for an even broader range of make-up products and make-up kits; (3) Beauty Glow, issued in March 1989 for “body and hair shampoo;” (4) Amber Glow, issued in 1989 for “hair coloring preparation;” (5) Alma’s Glow, issued in January 1990 for “hair shampoo; hot oil treatment for hair; hair conditioner; oil sheen for hair; hair growth and scalp aid; and hair dressing;” (6) Earth’s Glow, issued in August 1991 for “cosmetics, namely facial and eye make-up and nail enamel;” (7) Natural Glow, issued in March 1992 for “lip gloss, lipstick, blusher, mascara, eye shadow, cosmetic pencils, namely, eye, lip and cheek pencils, and eye liner;” (8) Fresh Glow, issued in March 2000 with a first use in commerce of September 1998 for “cosmetics, namely foundation makeup;” (9) Flame-Glo, issued in March 1984 for “cosmetics pencils, namely eye shadow pencils, eyebrow pencils, lip pencils, eyeliner pencils, and cheek pencils; make-up kits consisting, of eye shadows, blushers, face powder, lip color, lip gloss, lip liner, mascara and eyeliner; and rouge.” Existing variants also include a number of skin care products such as lotions, oils, soaps, scrubs, and bath salts. These include: (1) Almond Glow, issued in October 1984 for “skin care preparations — namely, lotion, moisturizers and massage oils;” (2) Alpha Glow, issued in July 1995 for “cosmetic preparations; namely, skin care lotions, creams, and oils; toilet soaps; skin moisturizers, bath oils and gels...;” (3) Ultra Glow, issued in May 1996 for “cosmetic products, namely soaps, toilet soaps, bar soaps, liquid soaps, liquid toilet soaps, essential oils, skin care preparations, creams, cosmetic facial creams, skin tone creams, skin lotions, moisturizers, cocoa butter creams and sticks, beauty bars, and facial scrubs;” (4) Aglow, issued in March 1997 for “perfume ■ and cologne, body and hand lotion, bath gel, body powder, skin cleanser, soaps... (5) AmbeR Glow, issued in June 1998 with a first use in commerce of May 1997 for “... cosmetic and skin care products, namely skin lotion containing cocoa butter, skin moisturizers, skin conditioning lotions, and skin toning preparations;” (6) UltRA Glow, issued in March 2000 with a first use in commerce of May 1976 for “personal care products, namely, skin soaps, toilet soaps, bar soaps, liquid soaps, liquid toilet soaps, essential oils for personal use, skin care preparations, namely, wrinkle removing skin care preparations, sun tan lotion, skin texturizers, skin emollients, bath oils, bath gels, hand creams, cosmetic facial creams, skin tone creams, skin lotions, skin moisturizers, cocoa butter skin creams and sticks, beauty bars for cleansing and conditioning skin, facial scrubs and hair care preparations;” and (7) Glo PoweR, issued in November 2000 with a first use in commerce of May 1998 for “toiletry products comprising cleaning, exfoliating, moisturizing preparations and perfumes, namely body wash and body lotions, bath and shower gels, foams, bubbles, oils, and non-medicated bath salts, bath bombs, hand and body soaps, skin lotions comprising massage oils, spray lotions for body, foot lotion, exfoliating body scrub, combination skin moisturizers and skin cleaners, waterless antibacterial soaps, perfume splash, liquid talc, spray liquid powder.” There are also several registered marks using “glow” or a variant thereof in connection with candles and fragrances, including: (1) The After Glow, issued in August 1996 for “scented fragrances or perfumes which may be sprayed on beds, bedroom furniture, pajamas, towels and bedclothes;” (2) Aglow, previously discussed; (8) Glowing Art, issued in November 2000 with a first use in commerce of June 1996 for “candles, scented candles and gel candles;” and (4) Disco Glow, issued in November 2000 with a first use in commerce of October 1999 for “cosmetics, namely lipstick, nail polish, and fragrances, namely perfume and cologne.” II. DISCUSSION A. Standard Governing Injunctive Relief In deciding whether to issue a preliminary injunction, the court must consider: (1) the likelihood of the moving party’s success on the merits; (2) the possibility of irreparable injury to the moving party if relief is not granted; (3) the extent to which the balance of hardships tips in favor of one party or the other; and in certain cases (4) whether the public interest will be advanced by granting preliminary relief. Miller v. California Pacific Med. Ctr., 19 F.3d 449, 456 (9th Cir.1994). See also Mayweathers v. Newland, 258 F.3d 930, 938 (9th Cir.2001) (“... the traditional equitable criteria for granting a preliminary injunction ... are ‘(1) a strong likelihood of success on the merits; (2) the possibility of irreparable injury to the plaintiffs if injunctive relief is not granted; (3) a balance of hardships favoring the plaintiffs; and (4) advancement of the public interest’ ”). The court may issue a preliminary injunction if the moving party establishes either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) the existence of serious questions going to the merits, a demonstration that there is at least a fair chance the movant will prevail, and a balance of hardships that tips sharply in the movant’s favor. Textile Unlimited, Inc. v. A.BMH & Co., Inc., 240 F.3d 781, 786 (9th Cir.2001); Miller, supra, 19 F.3d at 456. “These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.” Miller, supra, 19 F.3d at 456. See also Tillamook County v. U.S. Army Corps of Engineers, 288 F.3d 1140, 1143 (9th Cir.2002) (“To obtain preliminary injunctive relief, the movant must show: (1) a probability of success on the merits combined with a possibility of irreparable harm if the relief is denied; or (2) serious questions are raised and the balance of hardships tips sharply in the movant’s favor. These are not alternative tests but, instead, are extremes of a single continuum”). B. Glow, Inc.’s Likelihood Of Success On The Merits Of Its Trademark Infringement And Unfair Competition Claims Glow, Inc. pleads claims for trademark infringement, trademark dilution, and Lanham Act unfair competition, as well as state statutory and common law claims. Because the parties’ briefing focuses exclusively on Lanham Act trademark infringement and unfair competition, the court has confined its analysis to these claims. The purpose of trademark is to aid the “[ijdentification of the manufacturer or sponsor of a good or the provider of a service.” New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 305 (9th Cir.1992). Trademarks represent “a limited property right in a particular word, phrase, or symbol.” Id. at 306. To find that defendants have infringed Glow, Inc.’s mark the court will have to find that Glow, Inc. has a valid protectable trademark and that defendants’ use of the same or a similar mark causes a likelihood of confusion in the minds of the relevant consuming public. See 15 U.S.C. § 1114(1)(a); Fuddruckers, Inc. v. Doc’s B.R. Others, Inc., 826 F.2d 837, 841 (9th Cir.1987); First Brands Corp. v. Fred Meyer, Inc., 809 F.2d 1378, 1381 (9th Cir.1987). Glow, Inc. argues that defendants’ infringement in this case takes the form of “reverse confusion,” i.e., that defendants have “so saturate[d] the market with promotion of [their] trademark that consumers come to believe that the infringer, rather than the plaintiff, is the source of the trademarked product.” Murray v. Cable National Broadcasting Co., 86 F.3d 858, 861 (9th Cir.1996). See also Dreamwerks Production Group, Inc. v. SKG Studio, d/b/a Dreamworks SKG, 142 F.3d 1127, 1130 (9th Cir.1998) (“The question in such cases is whether consumers doing business with the senior user might mistakenly believe that they are dealing with the junior user. More specifically, the question here is whether a reasonable consumer attending a Dreamwerks-sponsored convention might do so believing it is a convention sponsored by DreamWorks”). 1. Protectability (i) Presumption Of Ownership And Right To Use Under 15 U.S.C. § 1115(a), a valid federal trademark registration constitutes prima facie evidence that the holder owns the mark, and has the exclusive right to use the mark in commerce in connection with the goods or services specified in the registration. See Brookfield Communications, supra, 174 F.3d at 1046-47 (in determining likelihood of success on a motion for preliminary injunction, the court “first determine[d] whether Brookfield ha[d] a valid, protectable trademark interest in the ‘MovieBuff mark,” and held that “Brookfield’s registration of the mark on the Principal Register in the Patent and Trademark Office constitute^] prima fa-cie evidence of the validity of the registered mark and of Brookfield’s exclusive right to use the mark on the goods and services specified in the registration”). See also Maktab Tarighe Oveyssi Shah Maghsoudi, Inc. v. Kianfar, 179 F.3d 1244, 1249 (9th Cir.1999) (“This registration constitutes prima facie evidence that Angha owns the marks.... It also provides constructive notice of the claimed ownership of the marks”). While Glow, Inc. asserts that registration of its mark is imminent, it does not presently own a federal trademark registration, and registration is not guaranteed. Thus, it may not avail itself of the statutory presumption that it owns and has the right to use the GLOW mark in commerce in connection with specified categories of goods. See Dalton Enterprises, Inc. v. Copeland Coating Co., Inc., No. 90-CV-320, 1991 WL 117698, * 14 (N.D.N.Y. June 18, 1991) (“a mark for which a notice of allowance is issued does not become a registered trademark until this process is completed. This includes a final examination by the PTO of the validity of the mark. There is no evidence in the record that this has been done for Latex Plus, and certainly no certificate of registration has been issued. Accordingly, Latex Plus is not entitled to the presumption of validity a registered trademark carries”). (11) Common Law Trademark Rights In the absence of presumed ownership, Glow, Inc. must establish that it has protectable rights in the Glow mark. Potential trademarks fall into four categories; (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful. Ja pan Telecom, Inc. v. Japan Telecom Am. Inc., 287 F.3d 866, 872 (9th Cir.2002); Filipino Yellow Pages, Inc. v. Asian Journal Publs., Inc., 198 F.3d 1143, 1146 (9th Cir.1999). To establish a protectable trademark, Glow, Inc. must prove either (1) that its mark is inherently distinctive or (2) that the mark has acquired secondary meaning associated with Glow, Inc.’s business. See Disc Golf Association, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1005 (9th Cir.1998) (“To recover for the infringement of a trademark ... under section 43(a) of the Lanham Act, [plaintiff] had to prove [inter alia ] that ... the [mark] is inherently distinctive or acquired distinctiveness through a secondary meaning”); Kendall-Jackson, supra, 150 F.3d at 1047 (“[a]n identifying mark is distinctive and is capable of being protected if it either (1) is inherently distinctive or (2) has acquired distinctiveness through secondary meaning” (quoting Two Pesos, supra, 505 U.S. at 769, 112 S.Ct. 2753)). Generic terms cannot be protected as trademarks because “they are common words or phrases that ‘describe a class of goods rather than an individual product,’ ” and thus do not relate exclusively to the trademark owner’s product. Japan Telecom, supra, 287 F.3d at 872 (citing New Kids on the Block, supra, 971 F.2d at 306). Descriptive terms “suffer from the same problem.” Id. Descriptive terms relate more directly to a particular product than do generic terms, as they “describe] ] a person, a place or an attribute of [the] product.” They will not support the grant of an exclusive property right, however, “[b]ecause they tend to consist of common words that might be the only way to describe a category of goods.” Id. See also Kendall-Jackson Winery, supra, 150 F.3d at 1047, n. 8 (“Descriptive marks define qualities or characteristics of a product in a straightforward way that requires no exercise of the imagination to be understood”). Terms that are suggestive, or arbitrary and fanciful, by contrast, are inherently distinctive, and protectable as trademarks. Japan Telecom, supra, 287 F.3d at 872 (noting that such terms are protect-able “without a showing of secondary meaning”). A suggestive mark “conveys an impression of a good but requires the exercise of some imagination and perception to reach a conclusion as to the product’s nature.” Brookfield Communications, supra, 174 F.3d at 1058, n. 19 (using “Roach Motel” insect traps as an example). See also Kendall-Jackson Winery, supra, 150 F.3d at 1047, n. 8 (a suggestive mark is one for which “a consumer must use imagination or any type of multistage reasoning to understand the mark’s significance, [because] the mark does not describe the product’s features, but suggests them” (emphasis original)). Arbitrary and fanciful marks “have no intrinsic connection to the product with which the mark is used; [arbitrary marks] consist] ] of words commonly used in the English language [e.g. ‘Black & White’ scotch whiskey], whereas [fanciful marks] are wholly made-up terms [e.g. ‘Clorox’ bleach].” Brookfield Communications, supra, 174 F.3d at 1058, n. 19 (citations omitted). Defendants argue that GLOW is generic, or at best descriptive. Glow, Inc. argues it is suggestive. To determine which of these positions is correct, the court must examine “the imaginativeness involved in the suggestion, that'is, how immediate and direct is the thought process from the mark to the particular product. If the mental leap between the word and the product’s attribute is not almost instantaneous, this strongly indicates suggestiveness, not direct descriptiveness.” Japan Telecom, supra, 287 F.3d at 873 (citing Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 911 (9th Cir.1995)). Defendants contend that Glow is an adjective “commonly used to describe the nature, shade, flavor, color or variety of various beauty products and the benefit to be achieved by their use.” Williamson counters that the Glow mark was chosen primarily because of “the positive feeling the word evokes.” The mark is used differently in packaging and advertising Glow, Inc.’s fragrance, shower gel, and body lotion products. Accordingly, the court will consider the distinctiveness of the mark with respect to each product individually. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 11-12 (2d Cir.1976) (invalidating Abercrombie & Fitch’s SauaRI trademark on clothing and hats, but not on boots or shoes, the court noted that “[t]he word ‘Safari’ has become part of a family of generic terms which ... have come to be understood ... as terms within the language referring to contemporary American fashion apparel. These terms name the components of the safari outfit well known to the clothing industry and its customers: the ‘Safari hat,’ ... the ‘Safari jacket,’ ... [and] the ‘Safari suit.’ ... A & F stands on stronger ground -with respect to HW’s use of ‘Camel Safari,’ ‘Hippo Safari’ and Chukka ‘Safari’ as names for boots imported from Africa. As already indicated, there is no evidence that ‘Safari’ has become a generic term for boots”). See also Paddington Corp. v. Attiki Importers & Distributors, 996 F.2d 577, 583 (2d Cir.1993) (“In classifying a trademark according to the Abercrombie test, a court examines the context in which the words constituting the mark are used. As one commentator explained, the word ‘apple’ would be arbitrary when used on personal computers, suggestive when used in ‘Apple-A-Day’ on vitamin tablets, descriptive when used in ‘Tomapple’ for combination tomato-apple juice and generic when used on apples”); DowBrands, L.P. v. Helene Curtis, Inc., 863 F.Supp. 963, 968 (D.Minn.1994) (“A term that is in one category for a particular product may be in a different category for another; thus ‘Ivory’ may be a fanciful term when referring to soap but be generic or descriptive when referring to another product”). (a) Glow Perfume With respect to Glow, Inc.’s perfume, the Glow mark clearly appears to be suggestive rather than descriptive because “a consumer must use more than a small amount of imagination to make the association.” Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1218 (9th Cir.1987). The mark does not directly describe the attributes of Glow, Inc.’s perfume. Indeed, words other than the Glow mark are used on the packaging to convey the fact that the perfume is a sandalwood scent. The mark thus appears to refer suggestively to the positive feeling one will achieve by using the product. See Giorgio Beverly Hills, Inc. v. Revlon Consumer Products Corp., 869 F.Supp. 176, 180 (S.D.N.Y.1994) (“The mark ‘Red’ invites the consumer to employ a bit of perception, thought, and imagination, to reach the conclusion that Giorgio’s fragrance is romantic, passionate, and sexy, and/or that the consumer will elicit the corresponding emotions from others when wearing the fragrance”); Elizabeth Taylor Cosmetics Co. v. Annick Goutal, S.A.R.L., 673 F.Supp. 1238, 1243-14 (S.D.N.Y.1987) (“Although the word ‘passion’ may be used frequently in fragrance advertising copy, it is not a descriptive term. Instead of describing the product, it describes an emotion the fragrance seeks to induce. Connecting the emotion to the fragrance requires ‘an effort of the imagination’”); Patou, Inc. v. Jacqueline Cochran, Inc., 201 F.Supp. 861, 864 (S.D.N.Y.1962) (“There are two extremes in the choice of a mark. A product may have a fanciful name, or at the other extreme, a name which is primarily descriptive. In between there exists a large middle ground of names, which while providing some description of the product, nevertheless demand an effort of the imagination to be understood as descriptive. These names must be taken in a suggestive or figurative sense. Joy[, as used for perfume,] stands in this middle ground”). See also Charles of the Ritz Group, Ltd. v. Marcon, Ltd., 635 F.Supp. 158, 161 (S.D.N.Y.1986) (noting that “[t]he word ‘silk’ has been widely adopted and used in the cosmetics industry,” and that it “conjures up the image of something that is soft and smooth and lustrous. It is frequently used in connection with cosmetics or toiletries to suggest that the relevant product has the qualities of silk. The word, for example, may suggest that eyeshadow will look as soft as silk, or lipstick will shine like silk. The word is also used to suggest the desirable result the product will achieve for the consumer, i.e., that use of the product will cause the consumer to have soft hair or smooth skin, or shiny fingernails”); (b) Glow Shower Gel And Body Lotion The manner in which the Glow mark is used on Glow, Inc.’s shower gel and body lotion is arguably more descriptive, in that it conveys. that use of the products will create glowing skin. The products are called, respectively, “Wash and Glow” “Body Glow.” In addition to a product name that incorporates Glow, the label for each product features the Glow mark displayed in a format that is identical to that found on the perfume label. Glow, Inc.’s product catalog indicates that the body lotion “softens your skin and adds a healthy glow.” While the product names “Wash and Glow” and “Body Glow” tend to describe the shower gel and body lotion, the court concludes that Glow, Inc. will ultimately be able to demonstrate that its primary mark Glow is not wholly descriptive as used in connection with these products, since at least a small amount of imagination is required to connect the mark to the products it represents. “Glow” is not descriptive of the qualities or characteristics of shower gels or body lotions. Indeed, one who hears the word does not immediately think of such products. Rather, some amount of association is required to link the concept of glowing skin to use of a particular gel or lotion. See Rodeo Collection, supra, 812 F.2d at 1219 (“A person would not be likely to picture a shopping center upon first hearing the name ‘Rodeo Collection.’ One must use some imagination to associate the word ‘collection’ with the collection of shops and restaurants that make up the shopping center. The remoteness of that association indicates that a competing shopping center would not need to use the term ‘collection’ in order to identify its own shopping center”). Compare Hanig & Co., Inc. v. Fisher & Co., Inc., No. 92 C 1779, 1994 WL 97758, * 3 (N.D.Ill. Mar.24, 1994) (“[W]hen a manufacturer puts a descriptive term such as ‘Bright-Glow’ on its light bulbs the customer is uncertain whether these words are being used as a designation of origin or merely a description — a claim that the bulbs glow brightly. Thus it is not presumed that the public recognizes and associates a descriptive mark with a plaintiffs products or services”) with Standard International Corp. v. American Sponge and Chamois Co., 55 C.C.P.A. 1155, 394 F.2d 599, 600 (Cust. & Pat.App.1968) (concluding the “Glow,” as used in Dust ‘N Glow, was “suggestive of the effect of using a wax polish upon furniture”); Sears Roebuck & Co. v. Haymer, 46 C.C.P.A. 783, 263 F.2d 348, 349 (Cust. & Pat.App.1959) (noting, with respect to competing marks Glo-Ray and Glow for hairdressing products that, “while the hyphenation of appellee’s mark sets ‘Glo’ apart and probably gives a suggestion of glowing, ... the primary impression created by the mark as a whole is that of glory, or a shining ray. Moreover, the word ‘Glow’ as associated with preparations designed to be applied to the hair does not appear to be arbitrary, but rather suggests that a desirable result will be obtained when used” (emphasis added)). See also Jean Patou, supra, 201 F.Supp. at 865 (“The defendant’s use of the word ‘joy’ in Joy Op Bathing ... is used to evoke a certain emotion on the part of the prospective purchaser. The use of the phrase Joy Of Bathing is designed to suggest the pleasure which will accompany the use of defendant’s product in one’s bath”). For purposes of the present motion, therefore, the court finds that Glow, Inc. will likely be able to prove that Glow is a suggestive mark when used in connection with its perfume, shower gel, and body lotion products, and that it will likely not be required to prove that the mark has acquired secondary meaning in order to secure protection under the Lanham Act. (iii) Whether Glow, Inc. Is The Senior User Of The Glow Mark Because neither party presently holds a registration for Glow, neither can take advantage of the presumption of protecta-bility provided by trademark registration. Glow, Inc. thus must establish that it is the senior user of Glow in connection with perfume, shower gel, and body lotion before it can prevail in its infringement action. Priority for purposes of- trademark law is established by commercial usage. See Sengoku Works Ltd. v. RMC Int’l, Ltd., 96 F.3d 1217, 1219 (9th Cir.1996) (“It is axiomatic in trademark law that the standard test of ownership is priority of use. To acquire ownership of a trademark it is not enough to have invented the mark first or even to have registered it first; the party claiming ownership must have been the first to actually use the mark in the sale of goods or services”). “The first to use a mark is deemed the ‘senior’ user and has the right to enjoin “junior” users from using confusingly similar marks in the same industry and market or within the senior user’s natural zone of expansion.” Brookfield Communications, supra, 174 F.3d at 1046. See also Union Nat’l Bank of Tex., Laredo, Tex. v. Union Nat’l Bank of Tex., Austin, Tex., 909 F.2d 839, 842-43 (5th Cir.1990); Tally-Ho, Inc. v. Coast Community College District, 889 F.2d 1018, 1023 (11th Cir.1989); New West Corp. v. NYM Co. of Cal., 595 F.2d 1194, 1200-01 (9th Cir.1979). Use of the mark must be “sufficiently public” that the marked goods are “identified] or distinguish[ed] ... in an appropriate segment of the public mind as those of [the adopter of the mark].” Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 433-34 (7th Cir.1999) (quoting New West Corp. v. NYM Co. of Cal., Inc., 595 F.2d 1194, 1200 (9th Cir.1979)). To establish that the public identifies the mark with a particular product source, the fact-finder may rely on its use in “ ‘advertising brochures, catalogs, newspaper ads, and articles in newspapers and trade publications,’ as well as in media outlets such as television and radio.” Id. at 434 (citations omitted). See also Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 1248-49 (4th Cir.1970) (holding that plaintiffs promotion and use of the distinctive mark “Comsat” as an abbreviation for its company, together with frequent references to the company by the Comsat name in magazines and newspapers, was sufficient to support a finding that the name was a strong and protectable mark). The evidence shows that Glow, Inc. began selling its perfume, shower gel, and body lotion under the Glow mark prior to the time Coty and Lopez began to sell Glow by J.Lo products. Glow, Inc: founder Williamson states that the company first used the mark in commerce on February 28, 1999. Its federal trademark application was filed on April 29, 1999, and sought registration of the mark, inter alia, in connection with the sale of skin soaps, lotions, and moisturizers. While the record contains no specific evidence as to when Glow, Inc.’s shower gel and body lotion were first sold, the lotion was featured in Los Angeles Magazine in July 2000, and the lotion and shower gel were showcased in InStyle magazine in May 2001. Williamson states that Glow perfume was sold under the mark at the company’s retail store in 2000, and launched on a national scale in 2001. The launch of the Glow BY J.Lo product line, by contrast, did not occur until June 2002. The court thus concludes that, considered in isolation, Glow, Inc. will likely be able to demonstrate that it commenced its commercial use of the GLOW mark before defendants entered the market with their Glow by J.Lo mark. Defendants argue, however, that Lopez’s recent acquisition of the Glow Kit mark makes her the senior user. Glow Kit mark is a registered federal trademark, published on July 7, 1999, for use in connection with “[c]osmetics sold separately and as a kit, namely, alpha hydroxy acid creams, facial cleansing lotions, and skin creams containing vitamin A derivatives.” The Glow Kit mark is not registered for use in connection with shower gels or fragrances, and thus could not affect priority of use as respects those products. Based on the limited record before it, the court concludes that defendants may well be able to establish that the Glow Kit mark was validly assigned to Lopez. The assignment recites that both the mark and the goodwill associated with it are being transferred to Lopez. See 15 U.S.C. § 1060 (“A registered mark or a mark for which an application to register has been filed shall be assignable with the good will of the business in which the mark is used, or with that part of the good will of the business connected with the use of and symbolized by the mark” (emphasis added)); Sugar Busters LLC v. Brennan, 177 F.3d 258, 265 (5th Cir.1999) (“a trademark cannot be sold or assigned apart from the goodwill it symbolizes”); E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1289 (9th Cir.1992) (“the goodwill of the business ... must accompany the mark”). While the assignor will continue to 'use the mark as the result of a licensing arrangement, the Ninth Circuit has held that such “assignment and license-back” agreements can be valid transfers of a mark and the goodwill associated with it. See E. & J. Gallo, supra, 967 F.2d at 1290 (“[A] simultaneous assignment and license-back of a mark is valid, where, as in this case, it does not disrupt continuity of the products or services associated with a given mark”). The fact that the assignment appears to have been motivated primarily by defendants’ desire to secure priority over Glow, Inc. does not detract from the validity of the assignment. See Carnival Brand Seafood Co. v. Carnival Brands, Inc., 187 F.3d 1307, 1309 (11th Cir.1999) (holding that an assignment to achieve priority over a rival was valid); Money Store v. Harriscorp Finance, Inc., 689 F.2d 666, 677 (7th Cir.1982) (“The plaintiff claims that the assignment is ineffective because it was a sham transaction, initiated by Harris for the sole purpose of obtaining superior rights to the mark in the Chicago area. Presumably, Harris sought the assignment because it knew of the plaintiffs prior rights in the mark. Harris did in fact know of the plaintiffs pending registration and it would be naive to conclude that knowledge was completely irrelevant to its decision to seek an assignment from United.... Obtaining the assignment from United is consistent with the defendant’s documented belief that the plaintiff could not successfully assert nationwide rights in the mark, and therefore another institution was free to use the mark in the Chicago area. We do not believe that an assignment motivated at least in part by sound business judgment should be set aside as a sham transaction”). Assuming the Glow Kit assignment is valid, this may or may not have an effect on Glow, Inc.’s ability to claim priority as senior user of the Glow mark. The Glow Kit trademark registration is limited to “[c]osmetics sold separately and as a kit, namely, alpha hydroxy acid creams, facial cleansing lotions, and skin creams containing vitamin A derivatives.” There is no evidence in the record that Glow, Ine.’s Body Glow lotion incorporates alpha hy-droxy acid or vitamin A derivatives, nor is there evidence that it is a facial cleansing cream. Thus, on the limited record presently before the court, it does not appear that the Lopez’s ownership of the Glow Kit mark will affect the priority analysis. (iv) Geographic Extent Of Glow, Inc.’s Trademark Usage Although Glow, Inc. is likely to succeed in establishing that the Glow mark is distinctive and that it is the senior user of the mark, it must also demonstrate the territorial scope of its trademark use in order to establish a likelihood of success on the merits. Generally, “in the absence of federal registration, both parties have the right to expand [their use of an unregistered mark] into unoccupied territory and establish exclusive rights by being first in that territory. In effect, it is a race between the parties to establish customer recognition in unoccupied territory.” 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 26:13 (4th ed.2002). Compare Value House v. Phillips Mercantile Co., 523 F.2d 424, 429 (10th Cir.1975) (“[Federal] registration is constructive notice of the registrant’s claim of ownership and affords protection which is nationwide and not confined to actual use of the mark”). Generally, the senior user of a mark is entitled to assert trademark rights in all areas in which it has legally sufficient market penetration. This is determined by examining the trademark user’s volume of sales and growth trends, the number of persons buying the trademarked product in relation to the number of potential purchasers, and the amount of advertising. See, e.g., Natural Footwear, Ltd. v. Hart, Schaffner & Marx, 760 F.2d 1383, 1398-99 (3d Cir.1985) (holding that the senior user had not established trademark rights outside the state of New Jersey). See also Adray v. Adry-Mart, Inc., 76 F.3d 984, 989 (9th Cir.1995) (holding that a trademark had not acquired secondary meaning outside Orange County, the court noted: “The extent of market penetration depends upon the volume of sales, the positive and negative growth trends, the number of people who purchased the party’s goods in relation to the number of potential customers, and the amount of advertising”). “Whether a volume of sales is significant will vary with the product and the market. The numbers that result in ... relief in one case may not be significant in another.” Charles Joaquin Et Cie, Inc. v. Destileria Serralles, Inc., 921 F.2d 467, 473 (3d Cir.1990). Market share may also be used to assess whether penetration is legally significant. See id. at 473-74. Where the trademark user has acquired a national reputation associated with its mark, it may assert trademark rights even in areas where it has no sales. See, e.g., Champions Golf Club v. Champions Golf Club, 78 F.3d 1111, 1124 (6th Cir.1996) (“... ‘[m]ere geographical distance is not controlling where the reputation of the senior user’s mark has been carried into a trade area prior to the junior user’s adoption and use.’ If [the senior user] had achieved nationwide recognition, then, even though [the junior user] had not heard of it, [the junior user] could not become an innocent junior user,” quoting 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 26.06 (3d ed.1995)). See also Golden Door, Inc. v. Odisho, 437 F.Supp. 956, 962 (N.D.Cal.1977) (determining that a nationwide injunction should issue under common law, the court noted that “[pjlaintiffs service mark has been used since 1958 in connection with its spa in Escondido, California. Although the services are rendered locally, plaintiff has conducted extensive nationwide advertising and promotion with the purpose and effect of drawing clientele from many parts of the country”), aff'd., 646 F.2d 347 (9th Cir.1980), abrogated on other grounds in Japan Telecom, supra, 287 F.3d 866. Finally, even if “the senior user cannot prove actual sales penetration into the contested area, and cannot prove that the reputation of its mark extends into that area, it may still make a claim that the junior user is located in an area which falls within the senior user’s ‘zone of natural expansion.’ ” 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 26.20 (4th ed.2002). The “natural zone of expansion,” however, is generally defined narrowly. See Tally-Ho, Inc. v. Coast Community College District, 889 F.2d 1018, 1028-29 (11th Cir.1989) (holding that a senior user that had used a mark at three community colleges in Florida did not have a zone of expansion that included Dade County, Florida, inter alia, because at the time defendant began using the mark there the senior user had not penetrated the cable broadcast market in Dade, had made extremely limited use of the mark, and had not attempted to use it on cable broadcast systems anywhere in Florida); ACCU Personnel v. AccuStaff, Inc., 846 F.Supp. 1191, (D.Del.1994) (refusing to find a zone of natural expansion in parts of Pennsylvania and Delaware as a result of plaintiffs use of a trademark in southern New Jersey because it failed to adduce any evidence that it had plans to expand into defendant’s territory, and noting that “[t]he proper enquiry ... is into what regions did plaintiff actually plan to expand at the time defendant adopted and began using its trademark”). Glow, Inc. offers little evidence regarding the market penetration or sales of the three products at issue. Specifically, it has proffered no evidence detailing the volume of products it has sold. Similarly, save for the InStyle and Los Angeles magazine pieces, it has adduced no evidence regarding the manner in which the products have been advertised. The majority of the evidence it has submitted, which concerns the advertising and sale of Glow products generally, also provides little information that would assist the court in quantifying market penetration, sales levels, growth trends, or the number of people who purchased the company’s products in relation to the number of potential customers. Williamson states that Glow, Inc. began to sell its products at its Los Angeles retail store in 1999, at Bergdorf Goodman in New York City in the Fall of 2000, and on the national beauty website <www.gloss.com> in the Spring of 2000. She further states that Glow products are currently sold at an unspecified number of Nordstrom stores and Ritz Carlton Hotels, at retail stores in eleven states, and on Glow, Inc.’s website <www.glow-spot.com>. Williamson asserts that Glow products are physically present in thirteen states, and that sales have been made in all fifty states. She proffers no evidence, however, as to the volume or level of sales in any location, • nor how Glow, Inc.’s market penetration compares with that of its competitors. Williamson also contends that Glow, Inc. has participated in “co-branding ventures” with national companies such as Reebok and Ritz Carlton; once again, however, she does not quantify the sales made as a result of the arrangements, nor specify the geographical territories that they covered. Other than Williamson’s general testimony regarding the company’s nationwide sales, the record reflects only that Glow, Inc.’s Los Angeles store or certain of its products have been mentioned briefly in a variety of national magazines, including Mademoiselle, Marie Claire, Seventeen and Redbook. Viewed in its totality, the evidence is not adequate to establish that Glow, Inc. has legally sufficient market penetration in any territory to assert common law trademark rights. Glow, Inc. would not need to establish such penetration if it could demonstrate alternatively that its mark had acquired a national reputation, or a reputation in certain designated geographic areas. Here again, however, the evidence does not suffice to make the necessary showing. While Glow, Inc. products are physically present in several states, are available on the internet, and have been mentioned in several national magazines, the generalized nature of the evidence presented precludes drawing inferences regarding the strength of the Glow mark’s resulting reputation. Having failed to demonstrate that it will likely prove it has common law trademark rights in any particular geographic area, Glow, Inc. also may not argue that Glow By J.Lo products infringe because they are being marketed in its “natural zone of expansion.” Williamson asserts that Glow, Inc. has recently negotiated with venture capital firms to expand the presence of Glow products in the marketplace. She further asserts that Glow, Inc. has recently discussed nationwide distribution of Glow products with two major department stores. Based on these comments, Glow, Inc. presumably argues that its “zone of natural expansion” is nationwide. See ACCU Personnel v. AccuStaff, Inc., 846 F.Supp. 1191, 1209 (D.Del.1994) (“The proper inquiry ... is into what regions did plaintiff actually plan to expand at the time defendant adopted and began using its trademark”). Awarding common law trademark rights based on a “zone of natural expansion” presupposes, however, that the trademark user has already penetrated the market in at least some geographic areas and established a presence there. Indeed, it is only after existing zones of market penetration are determined that natural zones of expansion can be identified. See Tally-Ho, supra, 889 F.2d at 1028 (“[T]here are few firm guidelines to define the senior user’s imaginary zone of natural expansion. However, several criteria seem relevant: (1) How great is the geographical distance from the senior user’s actual location to a point on the perimeter of the zone of expansion? (2) What is the nature of the business? Does it already have a large or small zone of actual market penetration or reputation? (3) What is the history of the senior user’s past expansion? Has it remained static for years, or has it continually expanded into new territories? Extrapolating prior expansion, how long would it take the senior user to reach the periphery of the expansion zone he claims? (4) Would it require an unusual ‘great leap forward’ for the senior user to enter the zone, or is the zone so close to existing locations that expansion would be (or is) a logical, gradual, step of the same length as those previously made?”). Because Glow, Inc. has not adequately demonstrated the extent of its current market penetration, a zone of expansion that encompasses the entire nation is about as large a “leap” as it is possible to imagine. Considering both evidence of actual market penetration and possible areas of expansion, therefore, the court concludes that Glow, Inc. has not demonstrated it is likely to prove national rights to the Glow mark. Moreover, on the present record, the court cannot conclude that it is likely to prove sufficient market penetration in any particular geographic area to claim common law trademark rights as the senior user in that territory.