Full opinion text
MEMORANDUM OPINION CACHERIS, District Judge. The Plaintiffs, Black & Decker (U.S.) Inc., The Black & Decker Corporation, and Black & Decker Inc. (“Black & Decker”), brought these consolidated actions alleging that the Defendants, Pro-Tech Power Incorporated (“Pro-Tech”), P & F Brother Industrial Corp. (“P & F”), Nu-Way Machinery Corp. (“Nu-Way”), Paul Chang, and Freddie Chang, committed unfair competition and false designation of origin, trade dress infringement, trademark infringement, trademark dilution, design patent infringement, copyright infringement, and false advertising in the market for professional power tools. The Court conducted a bench trial of this matter from August 25 through September 1, 1998, and now makes the following findings of fact and conclusions of law. PARTIES Black & Decker (U.S.) Inc. is a Maryland corporation that designs and manufactures the “DeWalt” line of professional power tools. The Black & Decker Corporation is a Maryland company that owns trademark rights in the DeWalt line. Black & Decker Inc. is a Delaware company that owns or otherwise enjoys standing to sue for the infringement of United States Design Patent No. 346,173 (“the ’173 patent”). Pro-Tech Power Incorporated is a California corporation that markets and distributes the “Pro-Tech” line of professional power tools. P & F Brother Industrial Corporation and Nu-Way Machinery Corporation are Taiwanese companies that manufacture some of the products in the Pro-Tech line. Paul and Freddie Chang are individual defendants who allegedly own or control the corporate defendants in this ease, but who successfully moved for a Directed Verdict in their favor at trial. (Tr. at 1293 - 97.) COUNTS The Amended Complaints in these consolidated actions allege a variety of causes of action under state and federal law: Count 1 contends that the Defendants manufacture and distribute Pro-Tech power tools that mimic the appearance of DeWalt power tools in a way that imposes unfair competition and suggests a false designation of origin in violation of the Lanham Act. Count 2 alleges that this conduct infringes on Black & Decker’s trade dress under the Lan-ham Act, and Count 3 alleges that this conduct constitutes common law trademark infringement and creates unfair competition under state law. Count 4 alleges state and federal trademark dilution. Civil Action No. 97-1123-A contains three additional causes of action. Count 5 contends that Pro-Tech’s CS7212 12" compound mitre saw infringes on a patent that Black & Decker owns. See United States Design Patent No. 346,173. Count 6 alleges that the instruction manual for the Pro-Tech CS7212 infringes on a copyright that Black & Decker owns. See United States Copyright Registration No. TX4-508-466. Count 7 alleges that by representing that the Pro-Tech CS7212 had 100% ball bearing construction and a 4,000 RPM motor, the Defendants committed false advertising in violation of the Lanham Act. The Defendants deny each of these claims and argue that the doctrine of estoppel by laches precludes Black & Decker from pursuing its trademark and trade dress infringement claims. Pro-Tech also makes two counterclaims. Count 1 alleges that Black & Decker initiated this litigation solely to harm Pro-Tech’s business and to damage its reputation in a way that constitutes unfair competition under state and federal law. Count 2 alleges that by representing DeWalt power tools as having been “Made in the U.S.A.,” Black & Decker violated the false advertising provisions of the Lanham Act. JURISDICTION The Court has subject matter jurisdiction over the federal questions in this case pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1338, and 15 U.S.C. § 1121(a), with supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. Venue is facially proper to the extent that at least one of the defendants sold some allegedly infringing power tools in the Eastern District of Virginia. See 28 U.S.C. § 1391(b). Although Pro-Tech concedes that it is subject to the power of this Court, P & F and Nu-Way challenge personal jurisdiction on the grounds that they are Taiwanese manufacturers that never directly offered any products for sale in this state. Black & Decker made a prima facie case for the assertion of personal jurisdiction against them during pretrial proceedings, and now bears the ultimate burden of establishing by a preponderance of the evidence that both the Virginia Long-Arm Statute and the Due Process Clause of the United States Constitution would permit the exercise of jurisdiction. See Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir.1993) (citing Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 102-03, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987)). Section 8.01-328.1(A)(4) of the Virginia Code authorizes personal jurisdiction over a defendant who causes tortious injury in this state by an act or omission that took place elsewhere, if the defendant “regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered” in Virginia. See Blue Ridge Bank v. Veribanc, Inc., 755 F.2d 371, 373 (4th Cir.1985). As the Court observed during pretrial proceedings, P & F and Nu-Way regularly solicit business in this state insofar as each of them advertises them products on World Wide Web sites. The sites are accessible to any Virginia resident over the Internet, and they provide interested customers with the companies’ e-mail addresses. Black & Decker established the existence of these Web sites prior to trial, and neither P & F nor Nu-Way rebutted their significance either then or thereafter, aside from making unsupported and eonclusory allegations that the sites were unauthorized. Absent any meaningful evidence to substantiate those allegations, the Court finds that these Web sites constitute a means of advertising by which P & F and Nu-Way regularly solicit business from Virginia residents within the meaning of the Virginia Long-Arm Statute. See Telco Communications v. An Apple A Day, 977 F.Supp. 404, 407 (E.D.Va.1997). In order for the exercise of personal jurisdiction to satisfy the Due Process Clause, P & F and Nu-Way must have had sufficient minimum contacts with this forum, such that haling them into court would not offend “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Stated differently, P & F and Nu-Way must have “purposefully avail[ed]” themselves of this district, see Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), and the assertion of personal jurisdiction against them must be fair and reasonable under the circumstances, see Worldr-Wide Volkswagen Carp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). As the Fourth Circuit has made clear, “[t]he placement of a product into the stream of commerce ... is not an act ... [that is] purposefully directed toward the forum State.” Lesnick v. Hollingsworth & Vose Co., 35 F.3d 939, 944 (4th Cir.1994) (quoting Asahi Metal Indus. Co. v. Superior Court of Calif., 480 U.S. 102, 112, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987) (plurality opinion)). Simple “awareness that the stream of commerce may or will sweep the product into the forum State” is not enough to render the exercise of personal jurisdiction constitutional. Lesnick, 35 F.3d at 945 (quoting Asahi, 480 U.S. at 112, 107 S.Ct. 1026). Against this background, the mere fact that P & F and Nu-Way manufacture power tools for Pro-Tech with knowledge that some of those tools will be sold in Virginia is insufficient to support the assertion of personal jurisdiction. Black & Decker’s case for jurisdiction therefore depends entirely on the argument that P & F and Nu-Way had such a close relationship with Pro-Tech as to render them subject to jurisdiction because of Pro-Tech’s contacts with this state. Although Paul Chang is the President or Chairman of the Board of Directors for each of the three companies (Tr. at 1008 - 09), the weight of the evidence adduced at trial demonstrated that Pro-Tech, P & F, and Nu-Way are independent companies both in form and in fact—with separate management, bank accounts, corporate offices, and the like (Tr. at 837 - 39, 867 - 68, 1010). Under these circumstances, Black & Decker’s attempt to base jurisdiction on an alter ego or instrumentality theory must fail. Moreover, even if the three companies were closely related, the exercise of personal jurisdiction would still offend due process because the connections among them dealt only with the general way in which P & F and Nu-Way—both of which are Taiwanese corporations—could supply power tools to Pro-Tech—which is a California corporation. Absent any evidence that P & F and Nu-Way specifically structured their relationship with Pro-Tech in order to facilitate the sale of power tools in Virginia, or that they otherwise purposefully availed themselves of this state, the Court cannot assert jurisdiction over them. See Lesnick, 35 F.3d at 946-47 (concluding that a federal court cannot derive personal jurisdiction over one company by examining the relationship that it had to another, unless the particular elements of the association between the two companies specifically related to the forum state or otherwise rose to the level of purposeful availment). FINDINGS OF FACT In 1990, Black & Decker faced a “very desperate position” in the market for professional power tools. (Tr. at 145.) “[E]nd user demand ... had diminished to a point of major concern,” as Black & Decker had a market share of only eight percent compared to competitors with a brand share as high as fifty-three percent. (Tr. at 145, 194; PTX 1338.) The company was “losing any hope of competing” and was considering dropping its line of professional power tools altogether. (Tr. at 145 - 46.) Joseph Galli, the new Vice-President of Marketing for Black & Decker’s U.S. Power Tool Division, concluded that the company-needed to change its image in order to revitalize its position in the professional power tool market. (Tr. at 146.) Tradesmen thought of Black & Decker as a brand for homeowners and confused its finest professional tools with its consumer-grade items because they had the same color scheme. (Tr. at 146 - 47.) In contrast, “every [other] professional power tool company that had any significant segment of the market had [its] own distinctive identity”—with Makita known for its teal blue professional power tools, Milwaukee known for its fire engine red colors, Bosch known for its royal blue colors, and Hitachi known for its bright green colors. (Tr. at 147 - 49.) Against this background, Galli decided to introduce a “new family of products with a new distinctive proprietary identity” that would differentiate the company’s professional power tools from its consumer power tools. (Tr. at 149.) The “DeWalt” line would have a “unique distinctive proprietary color and look” that potential purchasers could associate with high quality products specifically designed and targeted for professional users. (Tr. at 153.) A new color scheme would identify this flagship line, consistent with the advice of retailers who had made clear that color was a significant factor in product purchasing decisions. (Tr. at 154.) Black & Decker formally introduced the DeWalt line at a national sales meeting in late January, 1992. (Tr. at 156.) It began shipping the first wave of DeWalt power tools in the beginning of February. (Tr. at 156.) There were thirty-three different products in the initial launch, and the entire line used yellow as the dominant product color, “accented carefully by ... black and the selective use of silver on those tools that had exposed metal components.” (Tr. at 153 - 56; PTX 700 - 05.) An industrial design team carefully decided how to paint each tool in the line so as “to give it the distinctive DeWalt identity.” (Tr. at 156 - 59,175 - 76, 929; PTX 700 - 05.) Galli’s decision to use a yellow and black color scheme generated considerable controversy at Black & Decker. His boss laughed at the tools, calling them “bananas, canaries, [and] lemons.” (Tr. at 260.) None of Black & Decker’s competitors in the professional power tool market used a yellow and black color scheme, making his choice even more unusual. (Tr. at 261.) But Galli persisted, and at his direction, Black & Decker undertook extensive marketing efforts designed to promote the DeWalt look among professional power tool users. (Tr. at 160 - 63.) “SWARM teams”—which consisted of company representatives who traveled to different cities in yellow and black vans or trucks—visited construction sites in order to show off DeWalt products to professional tradesmen. (Tr. at 160 - 69; PTX 887, PTX 894, PTX 1342.) A separate sales force went to retail stores in order to familiarize customers with the new tools, while product displays, print advertising, and event sponsorships rounded out the marketing campaign. (Tr. at 168 - 71.) In 1992 alone, Black & Decker invested approximately fifty million dollars to promote DeWalt power tools (Tr. at 171), and by 1998 the line had grown to include 250 similarly-colored products (Tr. at 158 - 59). These promotional efforts consistently displayed a “yellow theme with the black highlights and the silver highlights,” so that customers would associate those colors with the DeWalt line. (Tr. at 172.) As Richard Ra-puano, the Senior Product Manager for Black & Decker’s Woodworking, Drilling, and Fastening Tools, testified at trial, “all the different things that we were doing were either yellow, black and silver or yellow and black. And everything was emblazoned with the DeWalt logo to try and drive just the whole image.” (Tr. at 891.) Some of the advertisements that Black & Decker used also promoted the DeWalt line as having been “Made in the U.S.A.” The 1992 catalog that first introduced the new DeWalt products had “Made in the U.S.A.” logos throughout (Tr. at 223 - 24; PTX 700.) Similarly, the trucks that Black & Decker sent out to demonstrate DeWalt tools at construction sites often had “Made in the U.S.A.” decals affixed to their sides, as did a Busch Grand National race car that the company sponsored. (Tr. at 219 - 20.) The purpose of this marketing campaign was to highlight the fact that of the thirty-three products that Black & Decker included in its initial DeWalt launch, thirty were manufactured in the United States. (Tr. at 212 - 13.) Although Black & Decker only produces approximately eighty-seven percent of its De-Walt tools in the United States (Tr. at 211), the remaining thirteen percent have had accurate labels indicating their correct country of origin at all times relevant to this case (Tr. at 283). Black & Decker took several other substantive steps to ensure that professional power tool users would associate the DeWalt look with quality products. It instituted a 1-800 number that purchasers could call for answers to questions and help with application ideas. (Tr. at 159.) It also provided a year of free maintenance with each product purchased, guaranteed a 48-hour turnaround time on product repairs, and offered loaner tools in the interim—“unheard of service breakthroughs” designed to cultivate a franchise around the DeWalt line. (Tr. at 159 - 60.) Black & Decker’s financial support for various vocational training programs further bolstered the DeWalt image in the minds of professional power tool users. (Tr. at 169 - 70.) As a result of these marketing efforts, the “DeWalt look” quickly took hold in the spring of 1992. (Tr. at 172 - 73, 891 - 93, 1837.) Customers remarked that they “loved the yellow tools” and even identified the products as “DeWalt yellow.” (Tr. at 891 - 93.) Newspaper and magazine articles celebrated Black & Decker’s success in promoting the DeWalt image, and over twenty marketing awards honored the level of popular recognition that the tools had acquired. (Tr. at 171 - 72, 182 - 83; PTX 712 - 31, PTX 886, PTX 891.) The Harvard Business School created a case study on the DeWalt line, and described the new color scheme as a major factor in its success. (Tr. at 183 - 84.) Whereas Black & Decker’s professional power tool sales totaled only $36 million in 1991, they rose to over $120 million in 1992 and are projected to exceed $1.2 billion in 1998—now capturing over 50% of the market. (Tr. at 180 - 81,194; PTX 1339.) Sometime after Black & Decker introduced the DeWalt line, Pro-Tech began “considering” its own series of yellow and black power tools. (Tr. at 630; DTX 231.) James Lancaster, Pro-Tech’s General Manager, conceded at trial that by the time he asked Pro-Tech’s major customers for their “input” on whether to use yellow and black colors, Black & Decker already had launched the first wave of DeWalt power tools. (Tr. at 630; DTX 231.) Although Pro-Tech may have distributed undated photographs of the new colors during the “first part” of 1992 (Tr. at 631 - 33; DTX 1124), it did not actually unveil the new colors until a trade show in August, 1992 and did not make any newly-colored products available for shipment until the end of 1992 or the beginning of 1993—long after consumers had begun attributing those colors to DeWalt. (Tr. at 435 - 36, 635 - 40; PTX 108, PTX 263, PTX 264.) But having seen Black & Decker’s phenomenal success, Pro-Tech closely copied the DeWalt look when designing and expanding its own competing line of yellow and black power tools. Pro-Tech’s 12" compound mitre saw, for example, has substantially the same color scheme as DeWalt’s 12" compound mi-tre saw. Both products have a yellow kerf plate, motor housing, and handle, with a black motor end cap, dust ejection port, and mitre lockdown knob. (Tr. at 361 - 62, 365 - 66; PTX 1120, PTX 1128.) The lower blade guard is smoke-colored, while the upper blade guard and base are silver. (Tr. at 362 - 64; PTX 1120, PTX 1128.) Similarly, both the Pro-Tech chop saw and the DeWalt chop saw have a black base with yellow upper blade guards, lower blade guards, and end caps. (Tr. at 353 - 54; PTX 1124, PTX 1126.) The motor housing on each tool is silver, and the name plates are yellow against a black background. (Tr. at 353 - 54; PTX 1124, PTX 1126.) In short, despite some nominal differences in the appearance of certain screws and other parts, the overall color scheme of the Pro-Tech line—and the particular placement of yellow on some parts and black on others—is virtually identical to the overall color scheme of each corresponding tool in the DeWalt line, and in a way that belies the possibility of coincidence. As Black & Decker exhaustively demonstrated at trial, Pro-Tech tools mimicked DeWalt tools so closely that actual consumer confusion resulted throughout the market for professional power tools. A Woodworkers Warehouse store in Bangor, Maine experienced twelve to sixteen instances of actual consumer confusion between Pro-Tech tools and DeWalt tools. (Tr. at 1251 - 57.) Nora Furr, a purchasing agent for Marco Supply Company in Roanoke, Virginia, confused the yellow and black colors on a Pro-Tech saw for the yellow and black colors that she was accustomed to seeing on the DeWalt line until a Black & Decker representative corrected her mistake. (Tr. at 1853 - 54,1857 - 59.) Richard Jarrett, a self-employed plasterer, mistakenly bought a Pro-Tech table saw thinking that it was a Black & Decker product, again because of the yellow and black color scheme that he associated with DeWalt. (Tr. at 1864 - 65, 1866 - 68.) John Fagan, a licensed electrician, observed that Pro-Tech tools had the “same coloring” as DeWalt tools and thought that Pro-Tech was simply a “lesser brand” of DeWalt rather than a different company altogether. (Tr. at 1039 - 40,1041 - 42.) Consistent with this actual consumer confusion, Black & Decker service centers routinely received broken or defective Pro-Tech products that end users brought in under the mistaken belief that a DeWalt warranty would cover them. (Tr. at 206 - 10; PTX 125.) Gary Cook, for example—a construction manager in New Orleans—thought that a Black & Decker service center could repair his broken Pro-Tech chop saw because he assumed from its yellow and black color scheme that it was related to DeWalt. (Tr. at 444 - 45, 450 - 51.) Despite repeated requests to the contrary, retailers—presumably those best poised to know which companies manufactured which products—also tried to send Black & Decker their unwanted Pro-Tech power tools. (Tr. at 208 - 09.) Black & Decker unquestionably incurred damages as a result of this consumer confusion because Pro-Tech’s products suffered from serious quality problems ranging from cracked housings, missing parts, and defective components to back-ordered shipments and more. (Tr. at 302 - 09, 778 - 81; PTX 47, PTX 55, PTX 290.) Eric Fernandes, who was Pro-Tech’s Marketing Manager at the time, repeatedly complained about these problems to the company’s original equipment manufacturer, P & F. (Tr. at 778 - 81; PTX 25.) In November of 1996, James Lancaster ordered P & F to stop shipping Pro-Tech’s 12" compound mitre saw altogether after he discovered major problems with the thousands of saws that it already had distributed across the United States. (Tr. at 308 - 09.) As Joseph Galli explained at trial, Pro-Tech’s quality problems directly affected Black & Decker to the extent that confused Pro-Tech power tool users sometimes attributed these defects and breakdowns to De-Walt. (Tr. at 210 - 11.) Pro-Tech’s infringing power tools also harmed Black & Decker by taking up merchandising space on retail shelves, cutting into sales of its professional power tools, and generally diminishing consumer appreciation for the relative quality of the DeWalt line. (Tr. at 210 -11.) Pro-Tech’s advertisements allegedly contributed to the harm that Black & Decker suffered whenever a customer became disappointed by a Pro-tech power tool that he mistakenly associated with DeWalt. The packaging for the Pro-Tech CS7212 12" compound mitre saw claimed that the product had 100% ball-bearing construction and a motor speed of 4,000 RPM when in fact it did not. (Tr. at 310 - 11, 319 - 23.) Eric Fernandes complained about these inaccuracies to P & F. (Tr. at 311 - 13, 320 - 21; PTX 12, PTX 288.) Even so, every CS7212 shipped as of December 17, 1996 falsely described this mitre saw as having 100% ball-bearing construction (Tr. at 777), and Pro-Tech initially refused to change its rated engine speed, despite a test run which revealed that the actual engine speed was lower (Tr. at 321 - 22). Pro-Tech’s attempt to profit from the reputation of the DeWalt line extended well beyond the distinctive yellow and black color scheme. When Black & Decker designed and patented the aesthetic characteristics of the DeWalt DW705 12" compound mitre saw, it included a number of novel and ornamental features that collectively differed from anything present in prior art. (Tr. at 707 - 08.) William S. Taylor, who headed the design team for the DeWalt DW705, identified at' least eight decorative, nonfunctional characteristics that contribute to the overall look that the product conveys. (Tr. at 665 - 68, 680 - 696, 701 - 08; PTX 1128.) The Pro-Tech CS7212 copied these same characteristics so as to create an overall visual impression that is substantially similar to that of the DW705. (PTX 1120.) Daniel Moon, the Defendants’ industrial design expert, attempted to make minute, piece-by-pieee distinctions between some of the parts on the two mitre saws (Tr. at 1513) and argued that some of the aesthetic characteristics actually had a functional purpose (Tr. at 1507). But notwithstanding his side-by-side comparison of the two saws (Tr. at 1556 - 57), he did not dispute that when viewed from any of the positions shown in Black & Decker’s design patent and considering only the ornamental rather than the functional characteristics of the two products, the Pro-Tech CS7212 conveys an overall visual impression that is so similar to the DeWalt DW705 as to confuse an ordinary observer. Pro-Tech also appropriated parts of the copyrighted instruction manual that Black & Decker developed to accompany its 12" compound mitre saw. Two of the illustrations in the Pro-Tech manual are virtually identical to the corresponding illustrations in the De-Walt manual. (PTX 15, PTX 16, PTX 287.) That Pro-Tech could have created identical illustrations by chance is belied by the January 9, 1996 memorandum that Eric Fer-nandes sent to P & F’s General Manager, Jerming Shei, in which Fernandes noted that his “corrections for page 18 of the CS7212 [manual] include[d] two pictures that [he] took from the DeWalt DW705 Instruction Manual.” (PTX 16A.) In short, the evidence suggests that when creating the instructional manual for the CS7212, Pro-Tech copied portions of the copyrighted instructional manual for the DW705. CREDIBILITY DETERMINATIONS The Court must judge the credibility of the witnesses in order to determine what weight, if any, to assign to their testimony. Except as to damages, which will be discussed later in this Opinion, the Court concludes that Joseph Galli, Richard Rapuano, and the other witnesses whom the Plaintiffs called to testify are more credible than James Lancaster, Jerming Shei, and the other witnesses whose testimony the Defendants offered at trial. The Court makes these credibility determinations with respect to four significant testimonial conflicts. First, whereas the Plaintiffs argued that their yellow and black power tools acquired secondary meaning in the minds of consumers well before Pro-Tech introduced its own yellow and black power tools, the Defendants claimed that they actually entered the market first. James Lancaster, for example, tried to testify that Pro-Tech started offering yellow and black products during the “first part” of 1992—perhaps even before Black & Decker had unveiled the DeWalt line at all. (Tr. at 633.) But none of the documents that Pro-Tech offered to support this proposition conclusively established that it actually entered the market that early, and Lancaster himself admitted that the company did not make its newly-colored products available for shipment until the end of 1992 or the beginning of 1993. (Tr. at 635 - 40; PTX 108, PTX 263, PTX 264.) According to the testimony of Joseph Galli, Richard Rapuano, and a host of actual consumers—all of whom the Court finds credible—the yellow and black color scheme on the DeWalt line already had achieved secondary meaning by that time. (Tr. at 172 - 73, 891 - 93, 1837.) To the extent that Pro-Tech’s evasive witnesses tried to suggest otherwise during their testimony, the Court concludes that their credibility is suspect. Second, whereas the Plaintiffs argued that Pro-Tech intentionally copied the yellow and black color scheme on the DeWalt line as well as the patented design of the DW705, the Defendants claimed that any similarities were purely accidental. James Lancaster, for example, maintained that he did not recall having seen the DeWalt colors before he selected the new Pro-Tech colors (Tr. at 325), and Jerming Shei testified that he could not remember whether Pro-Tech’s CS7212 looked “too similar” to DeWalt’s DW705 (Tr. at 1404 - 05). Even so, Lancaster could not deny at trial that the aesthetic similarities between Pro-Tech’s chop saws and DeWalt’s chop saws were more than just a coincidence. (Tr. at 358 - 59, 369 - 70.) He also admitted that he “might have” looked at the DeWalt DW705 mitre saw before selecting the same colors for the Pro-Tech CS7212 mitre saw, and that he “might have” sent a sample DeWalt saw to P & F before it started making a similar product for Pro-Tech. (Tr. at 368.) Tellingly, Shei testified that Lancaster insisted that certain parts on the Pro-Tech CS7212 use silver paint—just like the same parts on the DeWalt DW705—although it was functionally unnecessary and more expensive than other alternatives. (Tr. at 1408 - 09.) Pro-Tech even provided P & F with copies of various DeWalt advertisements depicting the yellow and black colors that Black & Decker had chosen. (Tr. at 328 - 29.) Lancaster also asked retailers to display Pro-Tech mitre saws near DeWalt mitre saws (Tr. at 376 - 77)—presumably so that consumers might assume some relationship between the two companies. Eric Fernandes went so far as to use an assumed name and ask Black & Decker for updated information about the DeWalt line. (Tr. at 769 - 71.) This overwhelming evidence leads the Court to conclude that Pro-Tech intentionally and directly copied the yellow and black color scheme of the DeWalt line, as well as the ornamental design features of the DW705. To the extent that Lancaster, Shei, and the Defendants’ other witnesses attempted to deny any copying, the Court finds that their testimony lacks credibility and does not deserve weight. Third, whereas William Taylor argued that the Pro-Tech CS7212 conveyed.an overall visual impression that was so similar to the DeWalt DW705 as to confuse the ordinary consumer (Tr. at 704 - 08), Daniel Moon attempted to argue that the two products had significant differences (Tr. at 1513), and that any similarities related to functional rather than ornamental features (Tr. at 1507). As discussed later in this Opinion, Moon’s methodology—which did not consider the overall visual impression created by each product and instead made only a side-by-side comparison of whether any differences existed—is analytically insufficient to defeat the Plaintiffs’ claim for design patent infringement. To the extent that Mr. Moon’s testimony is otherwise relevant, the Court finds that his limited background as an industrial designer who specializes in fitness products (Tr. at 1463), rather than power tools (Tr. at 1525) leaves him unqualified to provide credible testimony on the issues in this case. The Court instead credits the testimony of William S. Taylor, whose experience as a power tool designer provided him with an ample basis with which to evaluate the design of the two products at issue, and who testified that the overall visual impression conveyed by the Pro-Tech CS7212 was so similar to the De-Walt DW705 as to confuse the ordinary consumer. (Tr. at 665 - 68, 704 - 08.) Fourth, and as explained later in this Opinion, Philip Johnson, the Plaintiffs’ survey expert, testified that the yellow and black color scheme on the DeWalt line clearly had secondary meaning (Tr. at 547 - 51, 573 - 74; PTX 345 at 7 - 8), whereas Robert Lavidge, the Defendants survey expert, attempted to point out that these surveys suffered from methodological problems (Tr. at 1182). The Court agrees with Lavidge’s criticism that Johnson could not measure consumer perceptions any earlier than 1998. (Tr. at 1182.) But as Mr. Lavidge acknowledged at trial, brand identity takes time to develop and cannot arise instantaneously (Tr. at 1203)— meaning that Mr. Johnson’s conclusions at least implicitly support the testimony of Joseph Galli and Richard Rapuano, who credibly explained that consumers began to associate yellow and black with the DeWalt line almost immediately after its introduction in late January, 1992 (Tr. at 172 - 73, 891 - 93, 1837). Johnson also opined that Pro-Tech’s similarly-colored products caused actual confusion among professional power tool users (Tr. at 557; PTX 333, PTX 339, PTX 342, PTX 345, PTX 349), to which Lavidge responded with another series of methodological criticisms (Tr. at 1176 - 77,1182 - 83,1184 - 86). The Court credits Johnson’s testimony because at no time did Lavidge’s findings dispute the basic conclusion that Pro-Tech power tools pose a likelihood of confusion with DeWalt power tools. Moreover, even if Johnson’s work were suspect, the Court finds that the professional power tool users who attested to their own misunderstandings about Pro-Tech and DeWalt offer credible support for the conclusion that a likelihood of confusion exists. (Tr. at 1041 - 42,1251 - 57, 1857 - 59,1866 - 68.) CONCLUSIONS OF LAW I. Lcmham Act Claims for Unfair Competition, False Designation of Origin, and Trade Dress Infringement Black & Decker alleges that Pro-Tech power tools mimic the color scheme of DeWalt power tools in a way that creates unfair competition, suggests a false designation of origin, and constitutes trade dress infringement. Section 43(a) of the Lanham Act governs all of these claims, and requires proof (1) that the plaintiffs product possesses a primarily nonfunctional trade dress; (2) that this trade dress is inherently distinctive or possesses secondary meaning; and (3) that the defendant’s allegedly infringing product creates a likelihood of confusion in the marketplace. See Sunbeam Corp. v. Equity Industries Corp., 635 F.Supp. 625, 629 (E.D.Va.1986) (applying these elements to an unfair competition claim), aff'd per curia, 811 F.2d 1505 (4th Cir.1987); Oakley, Inc. v. International Tropic-Cal, Inc., 923 F.2d 167, 169 & n. 1 (Fed.Cir.1991) (reciting the same elements for a false designation of origin claim); Tools USA and Equip. Co. v. Champ Frame Straightening Equip., Inc., 87 F.3d 654, 657 (4th Cir.1996) (listing the same elements for a trade dress infringement claim). The Court will consider each element in turn. A. Functionality In order to recover under the Lan-ham Act, a plaintiff must prove that its trade dress is primarily nonfunctional. A feature is functional—and therefore outside the scope of trade dress protection—“if exclusive use of the feature would put competitors at a significant nonreputation-related disadvantage.” Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (quoting Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n. 10, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982)). Stated differently, “a product feature is functional if it is essential to the use or purpose of the article or it affects the cost or quality of the article.” See Inwood Labs., 456 U.S. at 850 n. 10,102 S.Ct. 2182. Black & Decker’s yellow and black trade dress clearly satisfies the nonfunction-ality requirement. Black & Decker created the DeWalt line at a time when “every professional power tool company that had any significant segment of the market had [its] own distinctive identity.” (Tr. at 147 - 49.) Makita, for example, colored its professional power tools in teal blue, while Milwaukee used fire engine red and Hitachi used bright green. (Tr. at 147 - 49.) Black & Decker selected a yellow and black color scheme in order to create this same type of reputational identity. (Tr. at 149 - 54.) Had Black & Decker painted its power tools in yellow alone, its claim to trade dress protection might be more tenuous. Yellow is, after all, a highly visible safety color. (Tr. at 806.) But the primary purpose and effect of using a color scheme that combined yellow and black together was not to emphasize safety, but instead to give DeWalt a unique look in the minds of professional power tool users. (Tr. at 261.) Against this background, Black & Decker’s choice of a yellow and black trade dress was primarily nonfunctional, even if yellow alone might not have been. See Tools USA, 87 F.3d at 659 (emphasizing that functional elements that are separately unprotectable can be combined so as to constitute part of an enforceable trade dress); see also Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 764 n. 1, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (observing that the trade dress of a product can include its color or color combinations). Cf. Qualitex Co., 514 U.S. at 164-66, 115 S.Ct. 1300 (holding that the functionality doctrine does not bar the use of color as a trademark). B. Secondary Meaning Monetary relief under the Lanham Act is available only when a plaintiff can show that its trade dress already had “secondary meaning” in the minds of consumers by the time the defendant entered the market. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 125-26 (4th Cir.1990).’ This inquiry turns on whether “the consuming public associates [a] product with a certain producer, and, most importantly, is likely to make that same association when the trade dress is used on another producer’s product.” M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 449 (4th Cir.1986). Stated simply, a product’s overall appearance is said to have secondary meaning when the purchasing public associates its appearance with a single producer or source. See Inwood Labs., 456 U.S. at 851 n. 11, 102 S.Ct. 2182. In determining whether secondary meaning exists, courts will consider a variety of factors including (1) the length and exclusivity of the trade dress; (2) the amount of advertising expenditures promoting the product; (3) the degree of unsolicited media coverage for the product; (4) sales volume and success; and (5) the extent to which the product’s appearance has achieved identity in the minds of the purchasing public. See Perini, 915 F.2d at 125-26; Tools USA, 87 F.3d at 660 (citing Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1528 n. 3 (4th Cir.1984)). Even circumstantial evidence is admissible to establish secondary meaning. See Tone Bros., Inc. v. Sysco Corp., 28 F.3d 1192, 1201 (Fed.Cir.1994). Black & Decker conclusively demonstrated at trial that its considerable marketing efforts caused the distinctive yellow and black color scheme on the DeWalt line to achieve consumer recognition soon after its initial launch in the beginning of February, 1992. Professional power tool users began to associate yellow and black with DeWalt by March of 1992 (Tr. at 172 - 73, 891 - 93, 1837), and Black & Decker’s aggressive marketing efforts certainly caused secondary meaning to arise by May of 1992—after De-Walt demonstrations had occurred at construction sites and retail stores across the country (Tr. at 888 - 92), media coverage and marketing awards had generated widespread publicity about the DeWalt look (Tr. at 908 - 910; PTX 712 - 31, PTX 886, PTX 891), customer after customer had commented on the dramatic new colors in the DeWalt line (Tr. at 891 - 93), and Black & Decker already had sold $24 to $25 million in DeWalt tools (Tr. at 895, 900 - 01). That the DeWalt colors currently enjoy secondary meaning is also beyond debate. Philip Johnson, Black & Decker’s survey expert, found that eighty-five percent of the professional power tool users that he polled identified yellow and black with Black & Decker or DeWalt (Tr. at 547 - 51, 573 - 74; PTX 345 at 7 - 8)—a level of consumer recognition that parallels the extent to which the public associates golden arches with the McDonald’s Corporation (Tr. at 575, 1202 - 03). Although Robert Lavidge, the Defendants’ survey expert, pointed out that Johnson could only measure consumer perceptions in 1998 (Tr. at 1182), the fact that brand identity takes time to develop (Tr. at 1203), means that Johnson’s conclusions inferentially support the testimony of Joseph Galli and Richard Rapuano—whose firsthand experiences at Black & Decker amply demonstrate how quickly consumers began to associate yellow and black with the DeWalt line (Tr. at 172 - 73, 891 - 93, 1837). See Tone Bros., 28 F.3d at 1201-05 (considering a secondary meaning survey conducted in 1990 although the allegedly infringing party entered the market in 1988). In light of this evidence, the Court finds that the yellow and black color scheme on the DeWalt line achieved secondary meaning in the minds of professional power tools users by May, 1992-—more than three months before Pro-Tech introduced its own line of yellow and black power tools at a trade show in August, 1992, and approximately seven months before Pro-Tech actually made its newly-colored products available for shipment toward the end of 1992 or the beginning of 1993. (Tr. at 635 - 40; PTX 108, PTX 263, PTX 264.) Moreover, even if the Court were to ignore this evidence of secondary meaning, the fact that Pro-Tech intentionally and directly copied the yellow and black color scheme on the DeWalt line creates a presumption of secondary meaning that independently enables Black & Decker to proceed with its Lanham Act claims. See Kramer Mfg., 783 F.2d at 448. Pro-Tech’s General Manager, James Lancaster, could not deny that the aesthetic similarities between the Pro-Tech chop saw and DeWalt chop saw were more than coincidental. (Tr. at 358 - 59, 369 - 70.) He also admitted that he “might have” looked at a DeWalt mitre saw before selecting the same colors for a competing Pro-Tech mitre saw (Tr. at 368)—a fact that P & F’s General Manager, Jerming Shei, corroborated during his deposition (Tr. at 1408 - 09). Pro-Tech even provided P & F with copies of various DeWalt advertisements showing the yellow and black color scheme. (Tr. at 328 - 29.) Pro-Tech’s General Manager also attempted to force retailers to place Pro-Tech products near DeWalt products (Tr. at 376 - 77), and its Marketing Manager used an assumed name to get updated information about the DeWalt line from Black & Decker (Tr. at 769 - 71). This pattern of conduct establishes intentional and direct copying that leads this Court to presume secondary meaning absent any effective rebuttal at trial. See Osem Food Industries Ltd. v. Sherwood Foods, Inc., 917 F.2d 161, 168 (4th Cir.1990) (describing this presumption as one upon which judgment must issue in the absence of rebutting proofy C. Likelihood of Confusion The Lanham Act further requires a plaintiff to show that the defendant’s allegedly infringing product creates a “likelihood of confusion” among consumers in the marketplace. This inquiry asks whether the purchasing public is likely to mistake the source of particular goods, or to assume some association, relationship, or sponsorship between the parties or their goods when no such association actually exists. See Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 933 (4th Cir.1995). In determining whether competing products pose a likelihood of confusion, courts will consider a variety of factors including (1) the strength or distinctiveness of the plaintiffs trade dress or trademark; (2) the similarity of the two parties’ marks; (3) the similarity of the goods and services that the marks identify; (4) the similarity of the facilities that the two parties use in their businesses; (5) the similarity of advertising used by the two parties; (6) the defendant’s intent; and (7) actual confusion. See Pizzeria Uno, 747 F.2d at 1527. Black & Decker presented abundant evidence at trial in order to establish that a likelihood of confusion exists between Pro-Tech power tools and DeWalt power tools. As Joseph Galli explained during his testimony, the new colors on the DeWalt line were so strong and distinctive that his boss initially ridiculed them as “bananas, canaries, [and] lemons.”—colors that none of the company’s competitors had used to date. (Tr. at 260 - 61.) The Pro-Tech line used a virtually identical trade dress, as demonstrated by the tools themselves (Tr. at 353 - 54, 361 - 66; PTX 1120, PTX 1124, PTX 1126, PTX 1128), and by the testimony of Paul Chang, who admitted that two of the saws, for example, had a “very similar” color scheme (Tr. at 1023). Because Black & Decker and Pro-Tech are direct competitors that sell the same products in the same market, the likelihood of confusion is clear. But in any event, actual consumer confusion is "patently the best evidence [of a] likelihood of confusion,” and Black & Decker adduced this kind of proof as well. Tools USA, 87 F.3d at 660 (quoting Allied Marketing Group, Inc. v. CDL Marketing, Inc., 878 F.2d 806, 813 (5th Cir.1989)). For example, twelve to sixteen instances of actual consumer confusion occurred between the two product lines at a Woodworkers Warehouse store in Bangor, Maine. (Tr. at 1251 - 57.) Professional power tool users from across the country mistook the yellow and black colors on Pro-Tech products for the yellow and black colors that they were accustomed to seeing on DeWalt products. (Tr. at 1041 - 42, 1251 - 57, 1857 - 59,1866 - 68.) Black & Decker service centers also received broken or defective Pro-Tech products that end users and retailers sent in under the erroneous assumption that a DeWalt warranty would cover them. (Tr. at 206 - 10; PTX 125.) Black & Decker’s survey evidence complemented these anecdotal accounts so as to suggest a strong likelihood that consumer confusion will persist if left unredressed. (PTX 333, PTX 339, PTX 342, PTX 345, PTX 349.) In Philip Johnson’s surveys of 1200 professional power tool users, three out of five respondents in one poll mistakenly identified a photograph of a Pro-Tech power tool as having some association with DeWalt or Black & Decker. (Tr. at 557.) Sixty-eight percent made this type of identification error when shown a rear view of a Pro-Tech product, and forty-five percent made the same error when shown a front view that prominently displayed a Pro-Tech label. (Tr. at 557.) Although Robert Lavidge challenged certain aspects of these studies in his capacity as the Defendants’ survey expert (Tr. at 1176 - 77, 1182 - 83, 1184 - 86), at no time did he dispute Mr. Johnson’s basic conclusion that Pro-Teeh power tools posed a likelihood of confusion with DeWalt power tools. Considering all of this evidence, the Court concludes that Pro-Tech’s yellow and black power tools pose a likelihood of confusion with DeWalt’s yellow and black power tools. Even if the evidence were insufficient to support this finding, the fact that Pro-Tech intentionally and directly copied the DeWalt look when designing its own competing line of products also creates a binding presumption of consumer confusion absent any effective rebuttal at trial. See Osem Food Industries, 917 F.2d at 165. In short, having established nonfunctionality, secondary meaning, and a likelihood of confusion by a preponderance of the evidence, Black & Decker is entitled to receive protection for the yellow and black color scheme on its DeWalt line of power tools, and accordingly, to recover on Counts 1 and 2 of the Amended Complaints in these cases, consistent with Section 43(a) of the Lanham Act. D. Laches Defense Pro-Tech contends that Black & Decker’s trademark/trade dress infringement claims are barred by laches. “In a trademark infringement case, courts may apply the doctrine of estoppel by laches to deny relief to a plaintiff who, though having knowledge of an infringement, has, to the detriment of the defendant, unreasonably delayed in seeking redress.” Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 461 (4th Cir.1996). 1. Injunctive Relief The doctrine of laches is sparingly applied in cases in which the plaintiff seeks equitable relief. Specifically, “estoppel by laches may not be invoked to deny injunctive relief if it is apparent that the infringing use is likely to cause confusion.” Sara Lee, 81 F.3d at 461. Stated another way, strong proof of a likelihood of confusion trumps the defense of laches. See Resorts of Pinehurst, Inc. v. Pinehurst National Corp., 148 F.3d 417, 423 (4th Cir.1998). As explained earlier, there is strong proof that Pro-Tech’s use of Black & Decker’s yellow and black color scheme is likely to cause confusion among consumers. In fact, the Court has found several instances of actual confusion between the DeWalt line and the Pro-Tech line of professional power tools. (Tr. at 1251 - 57,1853 - 54,1857 - 59, 1864 - 68, 1309 - 42.) Against this background, Pro-Tech’s laches defense to injunc-tive relief must be denied. 2. Damages The availability of a laches defense against claims for damages in trademark infringement actions depends upon the facts and circumstances of each ease. Nonetheless, the following factors should be considered: (1) whether the trademark owner knew of the infringing use; (2) whether the owner’s delay in challenging the infringement was unreasonable or inexcusable; and (3) whether the infringing user was unduly prejudiced by the delay. See Sara Lee, 81 F.3d at 461 n. 7; Brittingham v. Jenkins, 914 F.2d 447, 456 (4th Cir.1990). The first question is at what time, before filing suit, Black & Decker had actual or constructive notice of Pro-Tech’s infringement. Pro-Tech contends that Black & Decker had notice as early as October, 1993, because it obtained a copy of Pro-Tech’s House of Tools catalogue showing Pro-Tech’s line of yellow and black bench top tools. Pro-Tech points to Joseph Galli’s testimony in support of this contention. (Tr. at 279 - 81.) Galli’s testimony, however, does not show that Black & Decker had notice that Pro-Tech was engaged in trademark infringement. Galli stated that he was not aware that Black & Decker had received Pro-Tech’s catalog. Moreover, even if Black & Decker had received a Pro-Tech catalog, the Court is not convinced that a single catalog alone would have put Black & Decker on notice. In short, there is no meaningful evidence to show that Black & Decker was aware of any consumer confusion between DeWalt products and Pro-Tech products. Pro-Tech also maintains that Black & Decker obtained a Pro-Tech 7208 miter saw in February, 1994 and another Pro-Tech miter saw in 1995, which should have put Black & Decker on notice of any infringement. (Tr. at 279,1366 - 67.) The Court finds that the receipt of only one, or possibly two, of Pro-Tech’s saws out of an entire line of tools is not sufficient to have put Black & Decker on notice that Pro-Tech was engaging in trademark infringement. Pro-Tech next contends that Black & Decker was on notice in November of 1994 or in the summer of 1995 when Galli and other Black & Decker employees visited the P & F facility in Taiwan. (Tr. at 195 - 98, 1358, 1365.) Shei testified that when Galli and other Black & Decker representatives visited the facility, he showed them a conference room in which five of Pro-Tech’s products, with yellow, black, and silver color schemes, were on display. (Tr. at 1361.) But Galli testified that he saw many tools and colors at the P & F facility, that he knew that P & F marketed products around the world, not just in the United States, and that he did not remember one color scheme over another. (Tr. at 195 - 98.) The Court finds Galli’s testimony credible, and concludes that he did not notice any specific color scheme at the facility, including Pro-Tech’s yellow and black tools. Pro-Tech also argues that Black & Decker said nothing to Shei regarding Pro-Tech’s yellow and black color scheme. But this omission is consistent with the fact that Black & Decker was not on notice of Pro-Tech’s infringement. Because Black & Decker was unaware of the infringement, it is understandable that no employees commented on it. Even if the Court were to find otherwise, the earliest possible date that Black & Decker could have been on notice is November, 1994, when Black & Decker representatives first visited the P & F facility. Assuming that Black & Decker was on notice by that time, it still filed suit in July, 1997, imposing a delay of less than three years. See AC. Aukerman Co. v. R.L. Chaides Construction Co., 960 F.2d 1020, 1032 (Fed.Cir.1992) (en banc) (“The period of delay is measured from the time the plaintiff knew or reasonably should have known of the defendant’s alleged infringing activities to the date of suit.”). Although “[t]he length of time which may be deemed unreasonable has no fixed boundaries but rather depends on the circumstances,” id., it is usually only a “delay of more than six years [that] raises a presumption that it is unreasonable, inexcusable, and prejudicial,” Wanlass v. General Electric Co., 148 F.3d 1334, 1337 (Fed.Cir.1998). Because the owner of a trademark who rushes into litigation over trademark infringement may have little evidence of actual confusion and real commercial damage, it “has no obligation to sue until the likelihood of confusion looms large.” Sara Lee, 81 F.3d at 462 (internal citation omitted). Black & Decker at most delayed for approximately two-and-a-half years. In light of the need to avoid frivolous lawsuits, and the time it takes to investigate relevant facts, the Court finds that Black & Decker’s delay was not unreasonable. Cf. Skippy Inc. v. CPC Int’l, Inc., 674 F.2d 209, 212 (4th Cir.1982) (concluding that the district court properly found that laches barred a trademark suit after a thirty year delay). Further, there is little to no evidence that Black & Decker’s delay caused Pro-Tech any material prejudice. Prejudice may be evidentiary or economic: Evidentiary, or “defense prejudice,” may arise by reason of a defendant’s inability to present a full and fair defense on the merits due to the loss of records, death of a witness, or the unreliability of memories of long past events, thereby undermining the court's ability to judge the facts. Economic prejudice may arise where a defendant and possibly others will suffer the loss of monetary investments or incur damages which likely would have been prevented by earlier suit. Such damages or monetary losses are not merely those attributable to a finding of liability for infringement. The courts must look for a change in the economic position of the alleged infringer during the period of delay. Aukerman, 960 F.2d at 1033 (internal citations omitted); see also Wanlass, 148 F.3d at 1337. In this case, Pro-Tech has not claimed that records have been lost, that witnesses have died, or that memories of long past events have become unreliable. Moreover, James Lancaster could not identify any actions that Pro-Tech would have done differently had Black & Decker filed suit any earlier. (Tr. at 646 - 47.) Accordingly, the Court finds that Pro-Tech was not prejudiced in either an evidentiary or economic manner. A plaintiff: may also defeat a laches defense if the infringer has engaged in particularly egregious conduct which would change the equities significantly in plaintiffs favor. Conscious copying may be such a factor weighing against the defendant, whereas ignorance or a good faith belief in the merits of the defense may tilt matters in its fávor. Aukerman, 960 F.2d at 1033 (internal citations omitted). As previously discussed, there is evidence that Pro-Tech consciously copied Black & Decker’s color scheme; it did not just inadvertently use the same color scheme as Black & Decker. Because the equities tilt in Black & Decker’s favor, the laches defense must denied. E. Damages 15 U.S.C. § 1117(a) provides that a plaintiff is entitled, subject to the principles of equity, to recover “(1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action.” “The trial court’s primary function is to make violations of the Lanham Act unprofitable to the infringing party.” Roulo v. Russ Berrie & Co., 886 F.2d 931, 941 (7th Cir.1989). An award to the plaintiff of the defendant’s profits, even if plaintiffs actual sustained losses may have been less, is appropriate under theories of unjust enrichment or deterrence. See id. moreover, “[w]here the infringement is deliberate and willful, even if the products are non-competitive, both the trademark owner and the buying public are slighted, if the court provides no greater remedy than an injunction.” United States Olympic Comm. v. Union Sport Apparel, 220 U.S.P.Q. 526, 530 (E.D.Va.1983). Black & Decker introduced evidence of Pro-Tech’s profits through the testimony and reports of Jonathan I. Arnold. Arnold has a Masters in Business Administration and is a professional economist specializing in the economic analysis of patents and other intellectual property. (Tr. at 1055 - 56; PTX 373.) Arnold calculated Black & Decker’s trademark/trade dress infringement damages to be $7,215,874, with an additional $1,464,148 in prejudgment interest. (PTX 375: Table 2.) This calculation was based on Pro-Tech’s unjust enrichment and also on the profits that Pro-Tech earned in connection with the sale of its yellow and black products. (Tr. at 1068.) Pro-Tech submitted evidence of its profits through the testimony of Donald J. Pfingst-ler. Pfingstler is a Certified Public Accountant and has testified as a damages expert in other patent cases. (Tr. at 1599 - 1600; DTX 1529.) Pfingstler calculated Pro-Tech’s profits to be $564,733. (DTX 1529: Exhibit 4.) Mr. Pfingstler took all the revenues that Pro-Tech earned from fiscal year 1993 forward and subtracted out all the costs that it incurred over that time period. (Tr. at 1622.) He then added a prejudgment interest calculation based on a present value factor. (Tr. at 1623; DTX 1529: Exhibit 4.) Pfingstler explained that the main reason for the discrepancy between his calculations and Arnold’s calculations is that Arnold overestimated Pro-Tech’s profits because he did not include many of Pro-Tech’s day-to-day operations in assessing Pro-Tech’s costs. (Tr. at 1640, 1643.) Pfingstler maintained that because all of Pro-Tech’s revenues are attributable to its yellow and black products, virtually all the costs should be considered variable costs. (Tr. at 1622.) The Court agrees. All of Pro-Tech’s costs are related to the sale of its yellow and black products, and these costs should be taken into account when calculating its profits. The Court, however, disagrees with one significant aspect of Pfingstler’s calculation, which is the factoring in of Pro-Tech’s losses in 1993 and 1996. (DTX 1529: Exhibit 4.) Given that the calculation of damages rests on equitable considerations, the Court will not allow Pro-Tech to offset the profits it made in 1995, 1995, 1997, and 1998 by its losses in 1993 and 1996. (Tr. at 1738 - 39.) This determination is consistent with the goal of making violations of the Lanham Act unprofitable to the infringing party. See Roule, 886 F.2d at 941. Thus, discounting the losses that Pfingstler incorporated into his calculation, the Court finds that Black & Decker is entitled to $840,967 in damages. This figure reflects Pfingstler’s calculation of Pro-Tech’s profits, (DTX 1529: Exhibit 4), but it sets the profits and interest in 1993 and 1996 at $0, which prevents Pro-Tech from benefitting from its own infringement. Finally, the Court observes that Pfingstler did not account for projected profits from June 1998 until August 1998. Arnold projected that Pro-Tech would have profited an additional $879,421 during this time period. The Court finds that this projection is reasonable and is consistent with 15 U.S.C. § 1117(a), which permits the district court to allow damages of up to three times the amount of actual damages. In order to deter companies from committing trade dress infringement, the Court concludes that this addition is appropriate and that Black & Decker is entitled to the total sum of $1,720,-388. II. State Law Claims for Trademark Infringement and Unfair Competition Black & Decker also contends that the Pro-Tech line uses a color combination that so closely resembles the color scheme on the DeWalt line as to constitute common law trademark infringement and create unfair competition under state law. Both of these claims turn on whether there has been a “sale of the goods of one manufacturer or vendor for those of another,” Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 412-13, 36 S.Ct. 357, 60 L.Ed. 713 (1916); see Benj. T. Crump Co. v. J.L. Lindsay, Inc., 130 Va. 144, 107 S.E. 679, 682 (Va.1921), and in either case the test is “essentially the same” as the test for trade mark infringement and unfair competition pursuant to the Lanham Act, Lone Star, 43 F.3d at 930 n. 10. Under this inquiry, the plaintiff first must prove that it has a valid and protectable trademark. See Lone Star, 43 F.3d at 930. A color combination and even a color alone can create an enforceable trademark if it “has attained ‘secondary meaning’ and therefore identifies and distinguishes a part