Full opinion text
OPINION AND ORDER SCHEINDLIN, District Judge. This case involves the Court in the world of haute couture, where Louis Vuitton Malletier (“Louis Vuitton”), armed with state and federal trademark law, seeks to prevent Dooney & Bourke, Ine. (“Dooney & Bourke”)—and all others— from trespassing in what it perceives as its fashion “territory.” The trouble began in October 2002, when Louis Vuitton, an industry leader, premiered a fresh, exciting concept—printing its famous “LV” and geometric shapes in an array of bright, crisp colors on white and black handbags (“Monogram Multico-lore” marks). As often happens in -the fashion world, this multicolored monogram “look” was instantly and wildly popular. Dooney & Bourke, one of many handbag manufacturers to follow in the trend, launched a line of its own bags featuring its “DB” monogram (without geometric ornamentation) in a multicolored array. Objecting to its legion of imitators, Louis Vuitton has sued Dooney & Bouke, seeking refuge under both federal and state law governing intellectual property rights. The problem is that Dooney ,& Bourke did not use Louis Vuitton’s logo (an intertwined “LV”) or famous Toile Monogram on its bags. Rather, Dooney & Bourke used a multicolored “DB” monogram on both a white and black background. This emulation of the certáin features of the Louis Vuitton bags, however, does not reflect Dooney & Bourke’s intention to deceive customers into concluding that the product derives from Louis Vuitton. Louis Vuitton created a new look and now seeks to preclude others from following its lead. If Louis Vuitton succeeds, then it will have used the law to achieve an unwarranted anticompetitive result. It is well established that the objective of trademark law. is not to harm competition. To the contrary, the Supreme Court has noted that trademark law “seeks to promote competition by protecting a firm’s reputation” but does not permit legitimate competition to be inhibited by “allowing a producer to control a useful product feature.” Put another way, “[a] trademark is not a property right, but an identifier; so, provided no one is likely to be confused by the alleged infringer, there is no' impairment of the interest that the trademark statute protects.” Distilling the voluminous submissions to their essence, it is quite clear that Louis Vuitton cannot prevail on its plea for injunctive relief. To hold otherwise would not only contravene settled law, it would grant Louis Vuitton monopoly rights over a “look”—a multicolored monogram against a white or black background. In connection with this motion, the parties have collectively submitted close to 20,000 pages of material. But no amount of expert opinion, legal analysis, or demonstrative evidence can overcome the clarity that comes from direct observation. The following pictures of the competing products demonstrate the point. I. BACKGROUND A. The Parties Louis Vuitton, which has its principal place of business in Paris, France, manufactures, imports, sells, and distributes high fashion apparel, designer luggage, handbags, and leather accessories throughout the world, including New York. Doo-ney & Bourke makes and sells quality handbags and other fashion accessories, and maintains its principal place of business in Connecticut. B. Facts 1. Genesis of the Louis Vuitton Monogram Multicolore Marks Louis Vuitton owns various trademarks, including three that protect the individual elements of its celebrated “Toile Monogram.” Created in 1896, the Toile Monogram features “entwined LV initials with three motifs—a curved diamond with a four-point star inset, its negative, and a circle with a four-leafed flower inset.” These elements appear on apparel and accessories sold worldwide in “Louis Vuitton freestanding boutiques and in-store boutiques in the finest department stores, including Saks Fifth Avenue, Bloomingdale’s, Nieman Marcus, and Macy’s.” The Toile Monogram is traditionally printed in gold against a dark chestnut background. In 1997, Louis Vuitton hired fashion designer Marc Jacobs, who now serves as the “Artistic Director for its Louis Vuitton fashion apparel and accessory design lines, as well as his own signature lines.” In 2002, Jacobs contacted Japanese artist Ta-kashi Murakami to collaborate in the “revitalization” for the new millennium of the traditional Louis Vuitton monogram. To that end, on July 16, 2002, Murakami, Jacobs, and other Louis Yuitton and Kaikai Kiki, LLC (Murakami’s New York-based company) employees met at Louis Vuitton’s Paris offices. The resulting relationship resulted in the creation of four handbag and accessory collections premised on the Toile Monogram Trademarks: [ (1) ] the Monogram Cherry Blossom, featuring a pattern of the Louis Yuitton Toile Monogram with cherry blossoms; [ (2) ] the Eye Love Monogram, featuring a colorful pattern of the Louis Vuitton Toile Monogram with a Murakami eye symbol; [ (3) ] the Monogram Multi-colore, offering a visionary and avant-garde version of the [Toile Monogram] in thirty-three colors; and [ (4) ] a collection of Murakami characters featured on the Louis Vuitton Toile Monogram pattern. These patterns are printed through a process of silk-screening onto the treated canvases of handbags with “straps and handles- made out of natural calf s hide leather and hand-applied colored trim ... finished with [yellow] double-stitched edging and shiny gold hardware.” Thirty-three “very specific” colors, selected by Muraka-mi from his palette, are used in connection with the Monogram Multicolore marks. In particular, the Monogram Multicolore marks depict the traditional interlocked initials “LV” and geometric shapes presented in a repeating pattern; however, the Toile Monogram is not printed in gold against chestnut, but in a panoply of bright colors set against a white or black background. The Eye Love Monogram differs from the Monogram Multicolore in that the “circle flower” has been replaced by a signature Murakami “jelly fish eye.” The Murakami bags were launched on October 7, 2002 at Louis Vuitton’s Spring 2003 fashion show in Paris, France. These handbags, which were first distributed to retail stores in March 2003 (with a white background),, met with “overwhelmingly favorable response,” and according to Louis. Vuitton were dubbed by the media as one of the “must have” or “it” bags of the season. Consumers, including celebrities such as Janet Jackson, Elton John, and Reese Witherspoon, instantly expressed interest in purchasing a bag. In'July 2003, Louis Vuitton offered the Monogram Multicolore bags in black. When the Complaint was filed, nearly 70,-000 Monogram Multicolore handbags and accessories (over $40 million) had been sold in the United States, of which approximately $25 million was attributable to the white bags and $16 million to the black bags. These bags range in price from an estimated $360 to $3,950. 2. Genesis of the Dooney & Bourke It-Bags Dooney & Bourke, a company that has been in the handbag business since 1975, has sold bags bearing a repeated pattern of its interlocking initials (“DB”) from 2001, when it launched its “Signature” and “Mini Signature” lines. This “DB” monogram is a registered trademark that is not limited to a particular .color. In conjunction with Teen Vogue, Peter Dooney began working with a team of girls selected by the magazine—dubbed the “It Team”—to create Dooney & Bourke handbags with appeal to teenagers. To that end, Dooney and the It Team traveled to Milan in March 2003, where they were photographed peering into a store window featuring a Monogram Multicolore display in white, and viewing a black Monogram Multicolore swatch in a factory. Dooney testified that seeing the Monogram Multi-colore served to “reinforce” his “thinking” that “white and these happy colors, confetti looks and so forth were ... were moving forward and people liked them.” In late July 2003, Dooney & Bourke introduced its “Ih-Bag” collection, featuring the “DB” monogram (used in the Signature Line) in bright colors against a white background. In October 2003, Dooney & Bourke began selling these handbags in black. The It-Bags display interlocked initials “D” and “B,” printed in a forward and reverse pattern in an appreciably smaller font size than used on the Louis Vuitton bags. The “D” and “B” of each monogram are printed in different colors. Like the Louis Vuitton Muraka-mi bags, the It-Bags have “leather straps or handles and/or single-colored leather borders and shiny gold metal hardware.” But, in contrast to the Murakami bags, those made by Dooney & Bourke have multicolor zippers; a variety of colored backgrounds (e.g., periwinkle, grape, and bubble gum in addition to black and white); and a pink enameled heart with the words “Dooney & Bourke” written in gold script hanging by a leather strap from each Dooney & Bourke It-Bag. The It-Bag Collection is Dooney & Bourke’s largest revenue source, presently comprising nearly half of its total sales. According to Barbault, Louis Vuitton first became aware of Dooney & Bourke’s intention to release the Ib-Bag line in approximately July of 2003, but “was unable to inspect or obtain one of the handbags until ... months after they were first offered for sale.” Louis Vuitton then contacted counsel and hired an expert to test for consumer confusion. On April 16, 2004, nearly nine months after the Ih-Bags entered the market, Louis Vuitton sent a cease and desist letter to Dooney & Bourke and initiated the instant action three days later. Approximately two weeks later, Louis Vuitton moved for immediate injunctive relief. The motion was fully briefed on July 29, 2004, and a hearing was held on July 30, August 2, 5, 6, 9-11, 2004. The evidentiary record in this case closed on August 23, 2004. II. APPLICABLE LAW A. Legal Standard A preliminary injunction is “one of the most drastic tools in the arsenal of judicial remedies” and should not be routinely granted. To obtain a preliminary injunction, a party must demonstrate (1) probability of irreparable harm in the absence of injunctive relief and (2) either (A) a likelihood of success on the merits of the claim, or (B) “sufficiently serious questions going to the merits to make them a fair ground for litigation plus a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” “The party seeking the injunction must show a ‘clear’ or ‘substantial’ likelihood of success where the injunction sought is mandatory—ie., it will alter, rather than maintain, the status quo.” 1. Preliminary Injunctions in the Infringement Context “In an action for trademark infringement, where a mark merits protection, a showing that a significant number of consumers are likely to be confused about the source of the goods identified by the allegedly infringing mark is generally sufficient to demonstrate both irreparable harm and a likelihood of success on the merits.” Thus, the central questions before the court are (1) whether the plaintiff has a valid mark entitled to protection and (2) whether the defendant’s alleged infringement is likely to cause confusion among consumers. 2. Preliminary Injunctions in the Dilution Context The fact that a plaintiff may ultimately prevail on her dilution claim, entitling her to a permanent injunction, “does not mean that [she is] presumptively entitled to a preliminary injunction.” As the Second Circuit has noted: Though the legislatures have concluded that the gradual erosion of a famous or distinctive mark is to be prevented, the district court, before exercising its extraordinary equity powers to grant a preliminary injunction, should consider the likely pace of such an erosion pending adjudication of the merits. Some likely successful dilution claims will warrant such preliminary relief, while others will not. B. Trademark Infringement and Unfair Competition Under the Act The Supreme Court has explained the objectives of the Lanham Act, noting that it: “does not exist to reward manufacturers for their innovation in creating a particular device; that is the purpose of the patent law and its period of exclusivity.” ... Federal trademark law “has no necessary relation to invention or discovery,” but rather, by preventing competitors from copying “a source-identifying mark,” “reduce[s] the customer’s costs of shopping and making purchasing decisions,” and “helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product.” Section 43(a) of the Act permits a cause of action for the unauthorized use of unregistered trademarks and trade dress. Specifically, this section creates liability against any person who: in connection with any goods or services ... uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... is likely to cause confusion ... or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.... Accordingly, “[w]here there is a claim of consumer confusion [as] to the association of a product or service with another person’s trademark, the central inquiry is whether it is likely that ‘an appreciable number of ordinarily prudent purchasers’ will be misled as to the source or sponsorship of the product or service in question.” 1. Validity of the Mark “To be valid and protective, a mark must be capable of distinguishing the products it marks from those of others.” For purposes of trademark protection, marks are classified in five categories. A mark is generic if it is a common description of products and refers to the genus of which the particular product is a species. A mark is descriptive if it describes the product’s features, qualities, or ingredients in ordinary language or describes the use to which the product is put. A mark is suggestive if it merely suggests the features of the product, requiring the purchaser to use imagination, thought, and perception to reach a conclusion as to the nature of the goods. An arbitrary mark applies a common word in an unfamiliar way. A fanciful mark is not a real word at all, but is invented for its use as a mark. “A mark is entitled to protection when it is inherently distinctive,” that is, arbitrary, fanciful, or suggestive. On the other hand, if the mark is “merely descriptive,’ [ ] it qualifies for protection only if it has acquired secondary meaning....” In other words: [A] mark can be distinctive in one of two ways. First, a mark is inherently distinctive if “[its] intrinsic nature serves to identify a particular source.” Second, a mark has acquired distinctiveness, even if it is not inherently distinctive, if it has developed secondary meaning, which occurs when, “in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.” Classification of a mark requires the fact-finder to determine “how the purchasing public views the mark.” 2. Likelihood of Confusion Likelihood of confusion is the keystone of trademark infringement. To determine whether there is “a likelihood of confusion,” this Circuit applies the multi-factor test set forth long ago in Polaroid, Corp. v. Polarad Electronics Corp. “No single factor is dispositive, nor is a court limited to consideration of only these factors.” Although application of the Polaroid test is not “rigid, it is nevertheless ‘incumbent upon the district judge to engage in a deliberate review of each factor, and, if a factor is inapplicable to a case, to explain why.’ ” However, the Polaroid factors are “merely tools ‘designed to help grapple with the “vexing” problem of resolving the likelihood of confusion issue,’ and [ ] ‘the ultimate conclusion as to whether a likelihood of confusion exists is not to be determined in accordance with some rigid formula.’ ” a. Factor 1: Strength of Plaintiffs Marks “The strength of a trademark encompasses two different concepts, both of which relate significantly to likelihood of consumer confusion.” The first is the trademark’s inherent strength, or “inherent distinctiveness”; the second is its “acquired distinctiveness,” or the “fame, or the extent to which prominent use of the mark in commerce has resulted in a high degree of consumer recognition.” As to the first measure of strength— inherent distinctiveness—the law provides “broad, muscular protection” to arbitrary or fanciful marks and “lesser protection, or no protection at all to marks consisting of words that identify or describe the goods or their attributes.” The second measure of strength, that of source identification, is assessed by “the extent to which prominent use of the mark in commerce has resulted in a high degree of consumer recognition.” Acquired distinctiveness generally relates to the fame of a mark that has been prominently used in connection with a particular area of commerce for a long time. b. Factor 2: Similarity of the Marks “When evaluating the similarity of marks, courts consider the overall impression created by a mark.” “When the secondary user’s mark is not identical but merely similar to the plaintiffs mark, it is important to assess the degree of similarity between them in assessing the likelihood that consumers will be confused.” “The fact that the two marks appear similar is not dispositive. Rather, the question is whether such similarity is more likely than not to cause consumer confusion.” In evaluating this factor, a court must consider “all factors that could reasonably be expected to be perceived by and remembered by potential purchasers ... [including the] context in which the respective marks are generally presented.” The “prominent use” of a well known brand name on the product “significantly reduces, if not altogether eliminates, the likelihood that consumers will be confused as to the source of the parties’ products.” c. Factor 3: Proximity of the Products and Factor 4: Likelihood the Plaintiff Will “Bridge the Gap” These factors relate to the competitive distance between the products. The Second Circuit has stated that “the closer the secondary user’s goods are to those the consumer has seen marketed under the prior user’s brand, the more likely that the consumer will mistakenly assume a common source.” “In examining [the proximity] factor a court should compare all aspects of the products, including price, style, intended uses, target clientele, typical distribution channels, and others.” The “proximity inquiry” requires a court to consider the “extent [to which] the two products compete with each other.” This factor has two elements: (1) market (relating to whether two products are in related areas of commerce) and (2) geographic (regarding the geographic separation of the products) proximity. “Both elements seek to determine whether the two products have an overlapping client base that creates a potential for confusion.” “Bridging the gap” involves “a determination of the likelihood that the plaintiff will enter the [defendant’s] business or of the average customer’s perception that the plaintiff would enter the [defendant’s] market.” Here, both parties are in the business of selling handbags. Accordingly, this factor is not an issue. d.Factor 5: Existence of Actual Confusion “It is self-evident that the existence of actual consumer confusion indicates a likelihood of consumer confusion.” It is, however, well established that a plaintiff seeking to prevail under the Lanham Act need not prove the existence of actual confusion, “since actual confusion is very difficult to prove and the Act requires only a likelihood of confusion as to source.” Plaintiffs commonly use consumer surveys to demonstrate the existence of consumer confusion. Obviously, “[s]urveys do not measure the degree of actual confusion by real consumers making mistaken purchases. Rather surveys create an experimental environment from which we can get useful data from which to make informed inferences about the likelihood that actual confusion will take place.” “The evidentiary value of a consumer survey’s results depends upon the underlying objectivity of the survey itself, which is determined by reference to [a number of factors].” These criteria include whether: [ (1) ] the proper universe was examined and the representative sample was drawn from that universe; [ (2) ] the survey’s methodology and execution were in accordance with generally accepted standards of objective procedure and statistics in the field of such surveys; [ (3) ] the questions were leading or suggestive; [ (4) ] the data gathered were accurately reported; and [ (5) ] persons conducting the survey were recognized experts. Reliance on expert studies is not without its hazards. Indeed, the leading commentator in this field has stated that “any survey is of necessity an imperfect mirror of actual customer behavior under real life conditions.... It is notoriously easy for one survey expert to appear to tear apart the methodology of a survey taken by another.” Practically speaking, there is “no such thing as a ‘perfect’ survey. The nature of the beast is that it is a sample, albeit a scientifically constructed one.” As the Seventh Circuit has noted: Many experts are willing for a generous (and sometimes for a modest) fee to bend their science in the direction from which their fee is coming. The constraints that the market in consultant services for lawyers places on this sort of behavior are weak.... The judicial constraints on tendentious expert testimony are inherently weak because judges ... lack training or experience in the relevant fields of expert knowledge. But that is the system we have. e. Factor 6: Sophistication of Consumers The Second Circuit has noted that: Because likelihood of confusion “must be assessed by examining the level of sophistication of the relevant purchasers” of the plaintiffs and defendant’s services, “[courts] must consider [t]he general impression of the ordinary purchaser, buying under the normally prevalent conditions of the market and giving the attention such purchasers usually give in buying that class of goods.” “This ... factor recognizes that the likelihood of confusion between the products at issue depends in part on the sophistication of the relevant purchasers.” f. Factor 7: Bad Faith and Factor 8: Quality of the Defendant’s Products These factors are not of “high relevance to the issue of likelihood of confusion. A finding that a party acted in bad faith can affect the court’s choice of remedy or can tip the balance where questions are close.” Bad faith “examines whether defendants ‘adopted [their] mark with the intention of capitalizing on plaintiffs reputation and goodwill and any confusion between [their] and [plaintiffs] product.’ ” Quality of the defendant’s products is “primarily concerned with whether the inferior quality of a junior user’s goods could jeopardize the senior user’s reputation. However, ‘[products of equal quality may [also] create confusion as to source.’ ” C. Trademark Dilution Under the FTDA, “the owner of a famous trademark [can] seek ‘an injunction against another person’s commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark.’ ” Whereas an action for trademark infringement “serves the interests of consumers, as well as sellers, in having trademarks function as source-identifiers,” a dilution claim exists “solely for the benefit of sellers. Its purpose is to protect the owners of famous marks from the kind of dilution that is permitted by the trademark laws when a junior user uses the same mark in a non-confusing way in an unrelated area of commerce.” Dilution ordinarily applies where the parties do not operate in competitive or closely related product lines, but the FTDA “on its face is capable of application to competitive situations.” To prevail under the FTDA, a mark’s owner must show that: “(1) the senior mark [is] famous; [and] (2) distinc-five; (3) the junior use [is] a commercial use in commerce; (4) it [] begin[s] after the senior mark has become famous; and (5)[] cause[s] dilution of the distinctive quality of the senior mark.” Because a famous mark can be protected under the FTDA without a showing of confusion, “the standard for fame and distinctiveness required to obtain anti-dilution protection is more rigorous than that required to seek infringement protection.” It is not enough for a trademark holder to show that the mark has acquired secondary meaning. Rather, the plaintiff must demonstrate that the mark is inherently distinctive to prevail under the FTDA. A plaintiff must next demonstrate the existence of actual dilution, although it need not prove actual loss of sales or profits. The Supreme Court has explained: [W]here the marks at issue are not identical, the mere fact that consumers mentally associate the junior user’s mark with a famous mark is not sufficient to establish actionable dilution.... [S]uch mental association will not necessarily reduce the capacity of the famous mark to identify the goods of its owner.... D. New York Law 1. Trademark Infringement and Unfair Competition The elements necessary to prevail on common law causes of action for trademark infringement and unfair competition “mirror the Lanham Act claims.” In addition, to succeed on the merits of a “common law claim of unfair competition, [a plaintiff] must couple its evidence supporting liability under the Lanham Act with additional evidence demonstrating [the defendant’s] bad faith.” 2. Section 360-1 of the New York General Business Law “New York’s anti-dilution statute provides broader protection than trademark and unfair competition laws. It is designed to prevent ... the gradual whittling away of a firm’s distinctive trademark or name.” Section 360-1 of New York’s General Business Law protects the distinctive quality of a mark even in the absence of competition or confusion. Courts have held that “the necessary elements for a dilution or injury to business reputation claim are [ (1) ] the possession of a distinctive trademark and [ (2) ] likelihood of dilution.” Dilution claims brought under New York law differ from those premised on the FTDA in at least three respects. First, “New York law accords protection against dilution to marks that are distinctive as a result of acquired secondary meaning as well as to those that are inherently distinctive.” Second, to prevail on a state law dilution claim, a plaintiff need only show a likelihood of dilution. Third, dilution under New York law “can involve either blurring or tarnishment.” Blurring occurs “where the defendant uses or modifies [a plaintiffs] trademark to identify the defendant’s goods and services, raising the possibility that the mark will lose its ability to serve as a unique identifier of the [plaintiffs] product.” “To determine the likelihood of blurring, [courts look] to six factors, including: (i) the similarity of the marks; (ii) the similarity of the products covered; (iii) the sophistication of the consumers; (iv) the existence of predatory intent; (v) the renown of the senior mark; and (vi) the renown of the junior mark.” Alternatively, “[t]arnishment occurs where a trademark is ‘linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context, with the result that the public will associate the lack of quality or lack of prestige in the defendant’s goods with the [plaintiffs] unrelated goods.” ’ III. DISCUSSION A. Delay As a threshold matter, I note that any “presumption of irreparable harm is inoperative if the plaintiff has delayed either in bringing suit or in moving for preliminary injunctive relief.” This is true “unless the plaintiff is unaware of the severity of the infringement or the delay is attributable to the plaintiffs good faith efforts to investigate the infringement.” “Though such delay may not warrant the denial of ultimate relief, it may, standing alone, ... preclude the granting of preliminary injunctive relief, because the failure to act sooner undercuts the sense of urgency that ordinarily accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable injury." Dooney & Bourke suggests that Louis Vuitton’s claims are barred because Louis Vuitton: (1) “sat on its rights without communicating any concern to [Dooney & Bourke] for more than half a year.... This period of utter inactivity alone should rebut any presumption of irreparable harm and be fatal to Vuitton’s motion”; (2) “waited six more months before taking any action to enforce its supposed rights.” But Louis Vuitton offers a reasonable explanation for the delay, suggesting that the time that elapsed between its discovery of the allegedly infringing and diluting bags and the filing of this lawsuit is attributable to its efforts to conduct an investigation and weigh the costs and benefits of pursuing a lawsuit. Although Louis Vuitton’s delay in seeking relief informs the question of whether it has suffered irreparable harm, the delay is not so lengthy as to require denial of the motion. B. Trademark Infringement Under the Lanham Act 1. Validity of the Mark a. Definition of the Mark Dooney & Bourke contends that because “it is impossible to pin down exactly what Vuitton claims exclusive rights to,” Louis Vuitton’s unregistered Multico-lore and Eye Love monograms are not protectible. However, Louis Vuitton has identified the trademark at issue with precision, stating that it covers: (1) the interlocking initials interspersed in a repeating pattern with the registered geometric shapes, (2) used in combination with the thirty-three special Murakami colors, (3) set against a white or black background. Louis Vuitton has presented ample evidence suggesting that these unregistered marks are inherently distinctive (fanciful or arbitrary marks) and have attained secondary meaning and fame. First, consumers have associated the Toile Monogram mark with Louis Vuitton for over a century. Second, the Monogram Multicolore marks were created as source-identifying marks—new trademarks based on the original registration, and they rapidly garnered acclaim, becoming the symbol of Louis Vuitton in the new millennium. Accordingly, Louis Vuitton has adequately demonstrated that the Monogram Multico-lore and Eye Love marks are “valid,” for purposes of this motion. That said, to the extent Louis Vuitton may be claiming trademark protection for the array of (Murakami) multiple colors alone, its argument lacks merit.' The Supreme Court has explicitly foreclosed the argument that color, standing alone, can ever be “inherently distinctive.” Rather, colors are only protectible where the senior user has made a showing of secondary meaning, ie.', that consumers have come to “treat a particular color on a product or its packaging ... as signifying a brand.” Although Louis Vuitton has demonstrated that consumers associate the Monogram Multicolore marks with Louis Vuitton; there has been no showing that consumers similarly identify the use of multiple bright colors against a black or white background in connection with any design, with Louis Vuitton. To grant Louis Vuitton a monopoly over all multicolored repeating monograms set against a black or white background would hinder competition in the marketplace, thereby contravening one of the precepts of trademark law. Moreover, granting Louis Vuitton a trademark on its use of a color scheme alone would require a precise definition of each and every color combination claimed. b. Aesthetic Functionality Dooney & Bourke next submits that the doctrine of aesthetic functionality bars the enforcement of Louis Vuittoris-claimed trademark for any purpose. The Second Circuit has explained the concept of aesthetic functionality as follows: [W]here an ornamental feature is claimed as a trademark and trademark protection would significantly hinder competition by limiting the range of adequate alternative designs, the aesthetic functionality doctrine denies such pro- . tection. This rule ... requires] a finding of foreclosure of-alternatives while still ensuring that trademark protection does not exclude competitors from substantial markets. Dooney & Bourke’s reliance on this doctrine is misplaced. Granting trademark protection to Louis Vuitton’s Monogram Multicolore and Eye Love marks does not prevent Dooney & Bourke from using its own monogram in a spectrum of colors on its leather goods. Rather, it prohibits only the use of patterns “so similar as to create a likelihood of confusion.” Thus, the doctrine of aesthetic functionality does not bar Louis Vuitton from claiming protection for its Monogram Multicolore and Eye Love marks. 2. Likelihood of Confusion a. Factor 1: Strength of Louis Vuitton’s Marks Neither party disputes the strength of Louis Vuitton’s Toile Monogram. As noted in Part III.B.l, Louis Vuitton has adequately shown that the Monogram Multicolore trademarks are not only inherently distinctive, but have also attained secondary meaning in the marketplace. The new Monogram Multicolore and Eye Love trademarks are strong marks. b. Factor 2: Similarity of the Marks Visual comparison of the Louis Vuitton and Dooney & Bourke handbags reveals that there are obvious similarities. For instance, both handbags feature multicolored monograms against a solid white or black background. Also, the handbags are available in similar shapes. But “[t]he fact that there are similarities between marks does not necessarily render one of them confusing” and, for several reasons, Dooney & Bourke’s marks are not confusingly similar to those of Louis Vuitton. First, it could not be more obvious that Louis Vuitton uses the initials “LV,” while Dooney & Bourke uses its trademarked “DB” logo. Thus, a consumer seeing these trademarks printed on these bags, either up close or at a distance, is not likely to be confused. Second, the Dooney & Bourke bags only use their “DB” initials; there are no geometric shapes interspersed with the monogram. Third, there are clear differences between the competing bags. The Louis Vuitton bags prominently display metal studs, gold-toned zippers, and have much larger initials printed on them than do the Doo-ney & Bourke bags. Moreover, each of the Dooney & Bourke bags have a pink enameled heart, inscribed with the words “Dooney & Bourke,” hanging prominently from a leather strap attached to the multicolored zipper. This leaves only a similar choice of color scheme—the multicolored initials on the Dooney & Bourke bags printed on a white or black background. As noted in Part III.B.1, Louis Vuitton’s trademarks do not cover all uses of a multicolored logo against a white or black background because the use of multiple colors, when divorced from the geometric shapes and “LV” monogram, lack secondary meaning. Moreover, because the colors used on the Dooney & Bourke bag are noticeably toned down, and consequently fail to evoke the characteristic “friction” sparked by Murakami’s bright, clashing colors, the Louis Vuitton marks create a very different overall impression (ie., large interspersed shapes and initials in crisp, bold colors) than the Dooney & Bourke bags (ie., tightly interlocked initials in dulled colors). Accordingly, Louis Vuitton has failed to demonstrate that the similarity between the overall impression generated by the two marks is likely to lead to consumer confusion. This factor weighs in favor of Dooney & Bourke. c. Factor 3: Proximity of the Products and Factor 4: Likelihood Louis Vuitton Will “Bridge the Gap” The parties do not seriously dispute that the products compete in the same markets. Both parties are in the business of making, distributing, and selling handbags and other fashion accessories. Both parties’ handbags are sold in similar high-end retail establishments, located in close geographic proximity. The only notable difference between the bags in this context is the price differential. But because Dooney & Bourke has not shown that price meaningfully divides purchasers in the marketplace, it does not follow that Dooney & Bourke and Louis Vuitton handbags are not competing in the same basic market. Accordingly, this factor favors Louis Vuitton. d. Factor 5: Existence of Actual Confusion With the exception of a handful of e-mail messages sent from unidentified customers, Louis Vuitton has failed to present any evidence suggesting confusion among actual consumers. In light of the amount of time that the Dooney & Bourke bags have been on the market (approximately one year) and the number of IN Bags sold, the fact that three consumers expressed confusion is meaningless. Indeed, because Dooney & Bourke has sold over 500,000 (white and black) units, Louis Vuitton’s inability to produce more evidence of “real world” confusion is striking. Lacking direct evidence of actual confusion, Louis Vuitton relies primarily on indirect proof in the form of survey data. Indeed, both parties commissioned and presented studies that, not surprisingly, reach contrary conclusions: Louis Vuitton’s expert, Dr. Jacob Jacoby, found consumer confusion; Dooney & Bourke’s expert, Robert Reitter, detected no (statistically significant) confusion. For the reasons set forth below, I accord little weight to either study. i. Jacoby Confusion Study Dr. Jacoby’s Confusion Study is designed to test Louis Vuitton’s belief that Dooney & Bourke’s use of a monogram with multiple bright colors in a repeating pattern similar to the Louis Vuitton Multicolore design would cause consumers to be confused or mistaken into believing that Dooney’s “It Bag” originated from Louis Vuitton, or were sponsored or approved by Louis Vuitton, or that there was a relationship between Louis Vuitton and Dooney. The survey of 112 respondents intercepted at shopping malls in the United States and taken to testing areas in those malls, yielded a “net confusion” figure equal to 25%, a figure that Dr. Jacoby revised during the hearing, after reclassifying three responses categorized incorrectly as “confused,” to 22%. In other words, Dr. Jacoby claims that approximately one out of four respondents was confused into believing that the Dooney & Bourke bag either: was the same as or came from the same company that put out, the Louis Vuitton bag (11%), came from a company that had a business connection or relationship with the company that put out the Louis Vuitton bag (7%), or obtained, or needed to obtain permission or authorization from the company that put out the Louis Vuitton bag (7%). 1. Universe of the Survey Dr. Jacoby defined the relevant survey population as “females who were 16 years of age or older and were potential Louis Vuitton or Dooney & Bourke customers (or potential customers of both).” Dr. Jacoby states that: To be classified as a potential Louis Vuitton customer, in the past year or two, the respondent had to have bought a handbag costing more than $350, or a purse or wallet costing more than $100, or say she was likely to do so in the next year or so. To be classified as a potential Dooney & Bourke customer, in the past year or two, the respondent had to have bought a handbag costing $100 to $850, or a purse or wallet costing $50 to $100, or say she was likely to do so in the next year or so. Some respondents qualified for both groups. Dooney & Bourke contends that Dr. Ja-coby used ambiguous qualifying questions. That is, interviewers used the word “purse” in the screening questions, without specifying that the word meant “coin purse” or a similarly small item; rather than a bag worn over the shoulder. If a person indicated that she had or was likely to purchase a purse or wallet costing more than $100, she was a potential Louis Vuitton consumer; if she was likely to buy a purse or wallet costing between $50 and $100 dollars, she was a potential Dooney & Bourke consumer. According to the dictionary, a “purse” is defined primarily as, “[a] woman’s bag for carrying keys, a wallet, and other personal items; a handbag” and secondarily as, “[a] small bag or pouch for carrying money.” Because “purse” and “handbag” are synonymous, the respondent pool used in the Jacoby Confusion Study likely suffers from over-inclusiveness. “[E]ncompassing a group of people that includes those whose perceptions are not relevant ... [skews] the results by introducing irrelevant data.” Consequently, the weight accorded to the study necessarily decreases. 2. Survey Methodology and Execution Dooney & Bourke argues that the survey is “irremediably flawed,” in part, because it was not “conducted in the manner described in [Dr. Jacoby’s] expert report, but was conducted in two separate rounds, with the design modified halfway through to increase the number of ‘confusion’ responses.” Dr. Jacoby testified that the survey was conducted in two parts. During phase one, fifty-eight respondents were interviewed, and shown one of four different Dooney & Bourke bags or accessories. A percentage of the respondents expressed confusion as to each of the four bags as follows: 10 % (Bag 33); 7% (Bag 34); 6% (Bag 35); 5% (Bag 36). During phase two, fifty-one additional interviews were performed, and rather than being shown four bags, respondents were shown only one of the four Dooney & Bourke items—Bag 33. Dr. Jacoby explained that, although phase two of the study should have been run with two bags, the white and black wristlets, due to a “mistake” on the part of Dr. Kaplan (who was responsible for the interview process), only the white wristlet was used. Dooney & Bourke points out that this “oversight” on Dr. Kaplan’s part resulted in the exclusion of the three bags that had generated less confusion among respondents than had the white wristlet. Although it is impossible to measure the impact of this mistake, Dr. Jacoby’s report hints at the dangers associated with the use of one, rather than two, bag(s), stating, “To be able to show that the effects obtained were not due to having used a single, perhaps atypical, Dooney bag, respondents were shown one of two Dooney Test bags.” 3. Questions Asked in the Survey Dooney & Bourke next challenges the basis for Dr. Jacoby’s finding that seven percent of respondents mistakenly believed that Dooney & Bourke “obtained, or needed to obtain, permission or authorization from the company that put out the Louis Vuitton bag.” Dr. Jacoby draws this conclusion from respondents’ answers to a series of questions asking those surveyed to indicate whether “to come out with this bag,” the company “needed to get permission or a license from the company whose bags were shown in the ad [Louis Vuitton].” Similar questions have been included in previous Jacoby studies and rejected by courts because they improperly ask respondents for a legal conclusion. For that reason, answers to this question, and the finding of seven percent confusion as to product sponsorship, carry little weight. ii. Reitter Confusion Study Because Louis Vuitton has not shown actual confusion, Dooney & Bourke’s survey evidence demonstrating the absence of confusion merits only brief discussion. Dooney & Bourke’s expert offers his own confusion study. Participants in the Reitter Confusion Study were women likely to purchase a purse or handbag costing more than $100, intercepted at shopping malls and divided into a test and control group. Interpretation of these responses yielded a “net confusion” figure of 0.2%. However, there are several reasons to question this figure. First, the Reitter Confusion survey is essentially a reading test. In particular, interviewers were instructed that: WHEN SHOWING THE BAG MAKE SURE THAT THE HEART SHAPED BRASS NAME SIGN FACES SO THE RESPONDENT IS ABLE TO READ THE NAME DOONEY & BOURKE... WHEN THE RESPONDENT INDICATES SHE IS FINISHED EXAMINING THE BAG, UNOBTRUSIVELY PLACE THE HEART SHAPED BRASS NAME SIGN SO THAT THE NAME DOO-NEY & BOURKE FACES AGAINST THE BAG, AND THE PLAIN SHINY SIDE FACES OUT, AND PLACE THE BAG ABOUT 5 FEET AWAY FROM THE RESPONDENT. Participants were then asked “What company do you think makes this handbag?” As a matter of logic, “[s]urveys which do nothing more than demonstrate the respondents’ ability to read are not probative of the issue of likelihood of consumer confusion.” However, “when the source of the alleged confusion is not just a name, word or phrase,” the survey at issue can still be “helpful and any shortcomings will simply affect [its] probative value, not destroy it completely.” The degree of subtlety employed by interviewers in flipping the hearts cannot be known absent video footage of each interview, but the obvious implications of Reitter’s choice to display Dooney & Bourke’s name immediately before asking respondents to identify the source of the bag undermines the import of their answers. Moreover, due to several miscoded responses and Reitter’s poor choice of one of the control bags, the survey improperly inflates the number of responses illustrative of “noise,” which in turn erroneously deflates the confusion figures. Reitter’s failure to take into account the similarity between his brown, monochrome Dooney & Bourke control bag and Louis Vuitton’s traditional gold and chestnut bag decreases the probative value of his study. iii. Summary of Actual Confusion Evidence In sum, Louis Vuitton has failed to present compelling direct evidence supporting a finding that actual confusion exists among consumers. Moreover, Louis Vuitton’s reliance on the Jacoby study to meet its burden is misplaced, as that survey merits little, if any, weight because of its many flaws, both in design and execution. The absence of direct evidence of consumer confusion favors Dooney & Bourke. e. Factor 6: Sophistication of Consumers Dooney & Bourke argues that “[c]us-tomers who shop for [expensive] products in high-end department and specialty stores tend to be sophisticated and discriminating customers.” That consumers seeking to purchase Louis Vuitton and Dooney & Bourke handbags exercise a great deal of care in making purchasing decisions makes sense given the relatively high price of the products and the upscale locations where they are retailed. Accordingly, sophistication of purchasers strongly favors Dooney & Bourke. f. Factor 7: Bad Faith and Factor 8: Quality of Dooney & Bourke’s Products “The intent to compete by imitating the successful features of another’s product is vastly different from the intent to deceive purchasers as to the source of the product.” Even though Louis Vuitton has shown that Peter Dooney likely imitated certain aspects of Louis Vuitton’s Muraka-mi handbags, this does not mean that he acted in “bad faith,” as defined in the Act. The record shows that Peter Dooney and his It Team were aware of the Mura-kami design during the design process of the IL-Bags. Moreover, the timing of Dooney & Bourke’s It-Bag line, following closely on the heels of the debut of Louis Vuitton’s Murakami bags is more than merely fortuitous. There is also reason to doubt Dooney’s claim that he was merely following a general trend in the fashion world toward “happy colors” (predicted by a publication that he had not read). As Mello, a veteran of the fashion industry, testified, the trend toward bright colors was started by Louis Vuitton. Thus, it could reasonably be inferred that Dooney intentionally copied the Louis Vuitton multicolored “look” and that he intended to “ride on the coattails” of Louis Vuitton. As a result, Louis Vuitton has adequately demonstrated that Dooney borrowed elements from its “look”—the multicolored monogram against a white or black background. Nonetheless, there is absolutely no proof that Dooney & Bourke attempted to deceive consumers. Accordingly, this factor tips in favor of Dooney & Bourke. As for the quality of Dooney & Bourke’s bags, compared to those of Louis Vuitton, there are differences suggesting that the latter bags are of higher quality (a difference that is clearly reflected in the price). But the fact that the competing bags are not of equal quality suggests that consumers may be less confused by any alleged similarities in overall appearance. Moreover, there is insufficient evidence that Dooney & Bourke’s products are notably inferior to those of Louis Vuitton. There are customer complaints about both parties’ bags. Granted, there are more complaints about the Dooney & Bourke bags, but this is not unexpected, given the greater number of bags sold. On balance, this factor is neutral. g. Balancing the Factors In applying the Polaroid test, the court cannot lose sight of the key issue—whether likelihood of confusion exists between the senior and junior marks. According each of the factors its proper weight, it is quite clear that Louis Vuitton has not demonstrated that there is a likelihood of confusion (whether defined as reverse or forward; or initial interest, point-of-sale, or post-purchase) among consumers as to the source, authorization, or affiliation of Dooney & Bourke’s handbags. 3. Requirements for Preliminary Injunction Because Louis Vuitton has not shown that “a significant number of consumers are likely to be confused about the source of the goods identified by the allegedly infringing mark,” it must demonstrate irreparable harm and either a likelihood of success on the merits, or a serious question going to the merits and a balance of hardships tipping in its favor. Louis Vuitton has not shown that it is likely to suffer irreparable harm. For instance, there is no evidence suggesting a probability of significant financial loss. Indeed, the record suggests that Louis Vuitton is already unable to supply enough of the Monogram Multicolore bags to satisfy consumer demand. Further, Louis Vuitton’s own expert report revealed that, for at least some consumers, awareness of Dooney & Bourke’s It-Bags makes Louis Vuitton’s bag more desirable. Finally, Louis Vuitton’s delay in commencing this suit suggests that any “harm” it might suffer absent immediate relief, is not “irreparable.” Even if it could demonstrate a serious question going to the merits, Louis Vuitton has also not shown that the balance of hardships tips in its favor. In fact, the balance of the hardships strongly favors Dooney & Bourke, which would face significant financial and reputational harm if enjoined from using its own monogram in connection with the It Collection. Accordingly, Louis Vuitton has not shown that it is entitled to preliminary injunctive relief. C. Trademark Dilution Louis Vuitton has shown for purposes of the trademark infringement claim that its Monogram Multieolore trademarks are inherently distinctive and famous. Although the requisite showing is higher for a dilution claim, even under this heightened standard, Louis Vuitton has adequately demonstrated the fame and distinctive quality of its mark. Additionally, Dooney & Bourke’s use of its monogram in conjunction with its It Collection is a commercial use in commerce that began after Louis Vuitton’s mark became famous. This leaves only the question of whether Louis Vuitton has adequately demonstrated that it is likely to be able to prove actual dilution. In other words, does Doo-ney & Bourke’s use of the multicolored monogram printed on the white and black backgrounds of its handbags “lessen[ ] the capacity” of Louis Vuitton’s Monogram Multicolore trademarks “to identify and distinguish goods or services”? Louis Vuitton attempts to satisfy its burden with: (1) a handful of e-mail messages sent by consumers that allegedly suggest dilution and (2) Dr. Jacoby’s study purporting to reflect actual dilution. For the reasons set forth below, this evidence is insufficient to make the requisite showing of actual dilution. 1. Anecdotal Evidence of Dilution Louis Vuitton offers a handful of e-mail messages from consumers that, at most, show that a few purchasers mentally associate the Monogram Multicolore marks with the Dooney & Bourke It Collection. This anecdotal evidence is not compelling for at least two reasons. First, in light of the number of Dooney & Bourke products that have been sold, a smattering of e-mail messages allegedly showing dilution is hardly persuasive. Second, mere mental association between the products is simply not enough, and these e-mails do not demonstrate that the presence of the Dooney & Bourke It products on the market have weakened the capacity of the Monogram Multicolore marks to Identify Louis Vuitton’s handbags. 2. Survey Evidence of Dilution In addressing the issue of actual dilution, the parties once more turned to their respective experts. This time, Dr. Jacoby battled Dr. Yoram “Jerry” Wind, a Ph.D. in Marketing. Not surprisingly, the two reports reach opposite conclusions and neither is persuasive on the issue of actual dilution. a. Jacoby Dilution Study The objective of Dr. Jacoby’s dilution study is to test Louis Vuitton’s belief that Dooney & Bourke’s “use of a monogram with multiple bright colors in a repeating pattern similar to the Louis Vuitton Multi-colore design would cause dilution,” defined as “either a lessening of the purchase intentions toward and/or perceived distinctiveness, exclusivity, value and desirability of the Louis Vuitton Multicolore bags, or an increase in purchase intentions toward the Dooney It-Bags”. Based on the answers of ninety-six respondents, Dr. Jaco-by found that Dooney & Bourke’s It-bags “cause dilution by blurring at [twenty-three] percent and that the Dooney lookalikes had a tendency to decrease the distinctiveness, value and exclusivity of the Monogram Multicolore.” This finding merits little weight for several reasons. First, screening questions used in this study rely on respondents’ understanding of the ambiguous word “purse,” which, for the reasons stated in Part III.B.2.d.i.l, results in a potentially overinclusive universe. Second, the study lacks objectivity. Having failed to obtain satisfactory responses (ie., no dilution) from his first fifty-eight respondents, Dr. Jacoby terminated the original survey and started over with a new pool of fewer than one hundred respondents, but used substantially the same questions. Third, Dr. Jacoby expanded the scope of “dilution” (by blurring) - under the FTDA beyond “distinctiveness,” ’’exclusivity,” and “value,” by asking questions relating to “desirability.” When a respondent indicated that the presence of the It-Bags in the market diminished the desirability of the Louis Vuitton Monogram Multico-lore handbags, Dr. Jacoby counted her as “diluted.” Because desirability ig unrelated to a mark’s ability to identify and distinguish Louis Vuitton’s handbags, inclusion of these questions was erroneous. For the foregoing reasons, the Ja-coby Dilution Study lends little, if any, support to the assertion that the Dooney & Bourke It multicolored bags actually dilute the Monogram Multicolore trademarks. b. Wind Dilution Study As with the dueling confusion studies, because the burden rests with Louis Vuitton to show that it is entitled it to a preliminary injunction, Dooney & Bourke’s expert report warrants only brief discussion. Suffice it to say that at great expense Dr. Wind conducted his own study that purported to demonstrate the absence of dilution. But his report lacks probative value. Although a veteran in the area of market positioning studies, Dr. Wind lacks particular experience with dilution surveys. Indeed, the methodology he used—ie., placing Louis Vuitton’s Monogram Multicolore handbags in a vast array of other companies’ multicolored handbags —although commonplace in positioning studies, has never been accepted or endorsed by any court in the context of trademark dilution. Lack of judicial enthusiasm for this technique is not surprising. The presence of so many other multicolor-monogrammed bags likely distracts respondents from the central issue— whether the It-Bag monogram diminishes the ability of the Monogram Multicolore marks to identify the Louis Vuitton bags. Upon close inspection, the Wind Dilution Study reveals little except that there is high consumer recognition of the Louis Vuitton Monogram Multicolore marks. c. Summary of Dilution Evidence Considering the consumer e-mails purportedly evincing “dilution” by blurring, and discounting the Jacoby Dilution Survey, Louis Vuitton has not made an adequate showing of dilution for purposes of this motion. There is an absence of convincing evidence of any “lessening of the capacity of [plaintiffs mark] to identify and distinguish [its] goods or services.” 3. Requirements for Preliminary Injunction Even assuming, arguendo, that Louis Vuitton had adequately demonstrated a strong likelihood of success on the merits of its federal dilution claim, plaintiff is not “presumptively entitled to a preliminary injunction.” Where there is no imminent threat of rapid dilution, the extraordinary relief of granting a preliminary injunction is not warranted. Moreover, Louis Vuitton’s delay in bringing this lawsuit suggests that, in the absence of immediate injunctive relief, irreparable harm is unlikely. D. State Law Claims 1. Trademark Infringement and Unfair Competition As discussed in Part III.C, Louis Vuitton has not shown a likelihood of consumer confusion between its products and the Dooney & Bourke It-Bags for purposes of the Lanham Act. Accordingly, it cannot demonstrate that it is entitled to a preliminary injunction under New York law, which requires proof of a likelihood of confusion, as in a Lanham Act claim. 2. Trademark Dilution Louis Vuitton has not met its burden of showing a “likelihood of dilution,” necessary for immediate equitable relief under state anti-dilution laws. First, Louis Vuitton has not demonstrated a likelihood of dilution by blurring, as measured under a six-factor framework. Most of the factors strongly suggest that blurring is unlikely to occur. Specifically, Louis Vuitton has not shown that the marks are substantially similar, reducing the ability of the Monogram Multicolore marks to serve as a unique identifier for Louis Vuitton handbags and related accessories. Moreover, the relative sophistication of consumers and lack of predatory intent counsels against the likelihood of blurring. The remaining factors favor Louis Vuitton: the two marks are in competitive proximity and both marks are renowned. However, balancing these factors, it is quite clear that Louis Vuitton has not yet shown that it is likely to succeed on the merits of a state dilution claim premised on blurring. Second, Louis Vuitton has not shown that Dooney & Bourke’s use of its multicolored initials “tarnish” the Monogram Mul-ticolore marks. “The sine qua non of tar-nishment is a finding that plaintiffs mark will suffer negative associations through defendant’s use.” Louis Vuitton has not demonstrated that Dooney & Bourke’s products are either presented in an unwholesome way or of such a shoddy quality that Louis Vuitton’s marks are likely to be harmed by any mental association consumers might have between the two products. 3. Requirements for Preliminary Injunction Because Louis Vuitton has not demonstrated that a likelihood of dilution exists, there is no presumption of irreparable harm. As I have already noted Louis Vuitton has shown neither that it will suffer irreparable harm in the absence of a preliminary injunction, nor that the balance of the hardships tips in its favor. IV. CONCLUSION For the foregoing reasons, Louis Vuitton’s motion for a preliminary injunction is denied in its entirety. The Clerk of the Court is directed to close this motion. A conference is scheduled in Courtroom