Full opinion text
MEMORANDUM & ORDER DEARIE, Chief Judge. Plaintiff The Jewish Sephardic Yellow Pages, Ltd. (“JSYP”) sues defendants DAG Media, Inc. (“DAG”) and its president and CEO Assaf Ran under the Lan-ham Act and New York state law for infringement of the unregistered trademark “Kosher Yellow Pages.” Defendants now seek summary judgment on plaintiffs federal infringement claim, alleging that the mark is ineligible for trademark protection. The Court referred the motion to Magistrate Judge Roanne L. Mann for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). On August 31, 2006, Magistrate Judge Mann concluded that the mark is ineligible for protection and recommended that defendants’ motion be granted. On September 25, 2006, plaintiff filed objections to the Report. The Court has reviewed the record de novo and considered plaintiffs objections and defendants’ responses. Plaintiffs objections are meritless. In her Report, Magistrate Judge Mann concluded that the term Kosher Yellow Pages was descriptive rather than generic or suggestive. Magistrate Judge Mann went on to find that the mark is ineligible for trademark protection because plaintiff had not proved secondary meaning. Although the mark may be more appropriately classified as generic, the Court without hesitation joins Magistrate Judge Mann’s well-supported conclusion that the mark, if deemed descriptive in character, has not acquired secondary meaning. Accordingly, the Court adopts Magistrate Judge Mann’s recommendation that defendants’ summary judgment motion should be granted. DISCUSSION The material facts and procedural history are laid out in full in Magistrate Judge Mann’s comprehensive Report. A. Standard for Summaiy Judgment Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.” White v. ABCO Eng’g Corp., 221 F.3d 293, 300 (2d Cir. 2000) (quoting Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir.1991)). The Court’s role in reviewing a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although trademark disputes involve inherently factual determinations, the Second Circuit has indicated that summary judgment is as appropriate in trademark cases as in other cases where there are no triable issues of fact. See, e.g., Bernard v. TBG Mktg. Co., 964 F.2d 1338, 1343 (2d Cir.1992) (affirming district court’s grant of summary judgment in trademark case). B. Trademark Protection Marks are classified in categories of increasing distinctiveness: (1) generic, (2) descriptive, (3) suggestive, and (4)' arbitrary or fanciful. See Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1039 (2d Cir.1992). The latter two categories are deemed “inherently distinctive” and are accorded protection on this basis alone. Id. Generic marks are never protected, whereas descriptive marks are eligible for protection only when they have acquired distinctiveness or “secondary meaning.” Id. The Court agrees with Magistrate Judge Mann’s determination that the mark is not suggestive because it does not “require!] imagination, thought and perception to reach a conclusion as to the nature of goods.” Bernard, 964 F.2d at 1341. Whether the mark is descriptive rather than generic is a much closer question. Generic terms “refer to the genus or class of which the product is a species,” while descriptive terms “convey an immediate idea of some characteristic or attribute of the product.” PaperCutter, Inc. v. Fay’s Drug Co., Inc., 900 F.2d 558, 561-62 (2d Cir.1990). The Second Circuit has noted that the line between these two categories is “chimerical” and “often illusory.” See Thompson Medical Co., Inc. v. Pfizer, Inc., 753 F.2d 208, 213 n. 8, 215 (2d Cir.1985); see also 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 12:20, at 12-78 (4th ed.2006) (characterizing the boundary as “fuzzy and undefinable”). This line has proven especially elusive in the present case. As Judge Mann pointed out in her Report, plaintiff itself has used the Kosher Yellow Pages phrase in a generic sense. See Report and Recommendation at 363-65. At the same time, however, the composite term connotes more than one type of merchandise, and thus does not clearly “refer to the general class or category of the product” as is true of generic terms. PaperCutter, Inc., 900 F.2d at 562. At this juncture, the Court need not definitively classify Kosher Yellow Pages as a descriptive rather than a generic mark since plaintiffs failure to establish secondary meaning renders the mark ineligible for protection regardless. See Filipino Yellow Pages, Inc. v. Asian Journal Publ’ns, Inc., 198 F.3d 1143, 1150-52 & n. 5 (9th Cir.1999) (declining to classify mark as generic or descriptive where plaintiff failed to show secondary meaning); Brandwynne v. Combe Int’l, Ltd., 74 F.Supp.2d 364, 382 (S.D.N.Y.1999) (classifying mark as generic in a close case but discussing plaintiffs failure to show secondary meaning as alternative ground for holding that the mark was not protected). In determining whether a descriptive term has acquired secondary meaning, the Court looks to whether the term “comes through use to be uniquely associated with a single source.” PaperCutter, Inc., 900 F.2d at 564. The critical question is whether “the primary significance of the term in the minds of the consuming public is not the product but the producer.” Bristol-Myers Squibb Co., 973 F.2d at 1041 (quoting Centaur Commc’ns, Ltd. v. A/S/M Commc’ns, 830 F.2d 1217, 1221 (2d Cir.1987)). Secondary meaning is an inherently fact-bound determination entailing “vigorous evidentiary requirements,” and the burden of proof rests on the party asserting exclusive rights in the mark— here, plaintiff JSYP. Id. at 1041 (quotations omitted). Moreover, the party asserting these rights must demonstrate that the mark acquired secondary meaning “before its competitor commenced use of the mark.” PaperCutter, Inc., 900 F.2d at 564. Among the factors that courts have found relevant to the question of secondary meaning are: (1) advertising expenditures; (2) consumer studies; (3) sales success; (4) unsolicited media coverage; (5) attempts to plagiarize the mark; and (6) length and exclusivity of the mark’s use. See Bristol-Myers Squibb Co., 973 F.2d at 1041. “In assessing the existence of secondary meaning, no single factor is determinative, and every element need not be proved.” Thompson Medical Co., 753 F.2d at 217 (quotation omitted). Although the Second Circuit has stated that district courts should be cautious in weighing these factors at the summary judgment stage, it has nonetheless supported summary judgment in cases where the proponent of the alleged trademark has failed to raise a material issue of fact on the question of secondary meaning. See, e.g., Mana Prods., Inc. v. Columbia Cosmetics Mfg., Inc., 65 F.3d 1063, 1071 (2d Cir.1995) (affirming district court’s grant of summary judgment in trade dress case where plaintiff “failed to raise a material issue of fact as to whether [its product] had acquired secondary meaning in the marketplace”); Bernard, 964 F.2d at 1343 (affirming district court’s grant of summary judgment in trademark case where plaintiff “produced no evidence that a significant number of prospective purchasers associate his [ ] trademark with his product”). Based upon the submissions before the Court and considering the six factors outlined above, no reasonable jury could find that consumers had come to identify the term Kosher Yellow Pages with plaintiff by the time DAG began marketing its competing product in 2003. First, plaintiff claims that it has spent “in excess of tens of thousands of dollars annually” to advertise its mark. Ben-Hooren Decl. ¶ 54. However, even after ample discovery, plaintiff has failed to show with any level of specificity the portion of this outlay that was devoted to its Kosher Yellow Pages mark. While plaintiff contends that it spent between $90,000 and $165,000 each year from 1999 to 2003 on telemarketing calls and over $320,000 in 1999 and 2000 on advertisements in newspapers, Ben-Hooren Supplemental Decl. ¶¶ 50-52, plaintiff has elsewhere admitted to presenting its Kosher Yellow Pages and Sephardic Yellow Pages directories to advertisers simultaneously. Ben-Hooren Decl. ¶ 16; Ben-Hooren Supplemental Decl. Ex. 17. Further, many of the marketing efforts undertaken by plaintiff — for example, the newspaper ads, billboards, door stickers, and promotional postcards— did not exclusively showcase the Kosher Yellow Pages mark. See Ben-Hooren Supplemental Decl. Exs. 16, 18, 22, 25. Rather, these materials display the Kosher Yellow Pages mark alongside and sometimes less prominently than JSYP’s other identifying marks. Several of plaintiffs purported promotional materials do not contain the Kosher Yellow Pages mark at all. See Ben-Hooren Supplemental Decl. Exs. 20, 23. Finally, plaintiff has not submitted any concrete evidence showing that these efforts succeeded in reaching the Jewish Phonebook users who are plaintiffs target audience and who, along with advertisers, comprise the relevant segment of the public for purposes of assessing secondary meaning. See Report and Recommendation at 42-44 (discussing relevant segment of the public). Thus, the Court is unable to conclude that plaintiffs advertising efforts have been effective in causing either advertisers or the consuming public to associate Kosher Yellow Pages only with plaintiff. Second, plaintiff, by its own admission, has not conducted a consumer survey. Revised Pl.’s Supplemental Mem. Law at 4. Instead, plaintiff has submitted 14 identical affidavits from advertisers, all of whom claim they “automatically associate” the phrase Kosher Yellow Pages with plaintiffs directory. Ben-Hooren Decl. ¶ 34 & Ex. 12. While courts have stated that “consumer surveys are the ‘most direct and persuasive evidence of secondary meaning,’ ” Black & Decker Corp. v. Dunsford, 944 F.Supp. 220, 227 n. 9 (S.D.N.Y.1996) (quoting Co-Rect Prods., Inc. v. Marvy! Advertising Photography, Inc., 780 F.2d 1324, 1333 n. 9 (8th Cir.1985)), the conclusory assertions in these boilerplate affidavits offer only scant support for the proposition that plaintiffs mark had acquired the requisite level of recognition among the relevant audience. Third, though plaintiff claimed early on in the litigation that it has “achieved and sustained significant and substantial sales,” it does not provide any actual sales figures. Ben Hooren TRO Decl. ¶ 81. Plaintiffs blanket assertion that Kosher Yellow Pages is “the print medium of choice” for high-end corporate advertisers and the six representative advertisements it submitted are no substitute for hard numbers. Ben Hooren TRO Decl. ¶¶25, 26 & Exs. M, N. Fourth, plaintiffs only evidence of unsolicited media coverage is one 1999 article on David Ben-Hooren which centers its discussion on the Sephardic Yellow Pages directory and nowhere mentions the Kosher Yellow Pages directory by name. Ben-Hooren TRO Decl. Ex. 0. Fifth, plaintiff contends that defendants intentionally copied the Kosher Yellow Pages mark to take advantage of plaintiffs pre-existing name recognition. Revised Pl.’s Supplemental Mem. at 6. Plaintiff has marshaled evidence suggesting that defendants appropriated the Kosher Yellow Pages mark and doctored records to indicate that they were the first users of the mark. See Ben-Hooren Decl. ¶¶ 38, 39, 43, 45. But “although imitative intent can help support a finding of secondary meaning, it does not necessarily mandate one[.]” Bristol-Myers Squibb Co., 973 F.2d at 1042 (internal citations omitted). Cf. ITC Ltd. v. Punchgini, Inc., 373 F.Supp.2d 275, 291 (S.D.N.Y.2005) (“Although there may be some circumstances in which intentional copying is sufficient to show ‘secondary meaning,’ it would be tautological to conclude that copying alone demonstrates ‘secondary meaning’ ... where that copying is only prohibited ... if that mark has ‘secondary meaning.’ ”). Finally, regarding length and exclusivity of use, there is no magic time span that confers secondary meaning. See Centaur Commc’ns, Ltd., 830 F.2d at 1225 (“Of course, no absolute time span can be posited as a yardstick in cases involving secondary meaning. Instead, the length and exclusivity of a mark’s use is evaluated in light of the product and its consumers.”) (citations omitted). For purposes of this motion, it is undisputed that plaintiff used the Kosher Yellow Pages mark exclusively from 2000 until 2003. While this is not an insignificant amount of time, particularly within the context of a niche market, the Court cannot conclude that a discrete four-year period during which plaintiff published no more than four editions of its directory was sufficient to cause the relevant audience to identify the Kosher Yellow Pages mark with plaintiff. Having given careful consideration to the above factors, the Court concludes that plaintiff has failed to meet the “vigorous evidentiary requirements” necessary to show secondary meaning. Even crediting the evidence of intentional copying, the Court holds that no reasonable jury could find that “the primary significance of the term in the minds of the consuming public is not the product but the producer.” Bristol-Myers Squibb Co., 973 F.2d at 1041. Thus, even if Kosher Yellow Pages were classified as a descriptive rather than a generic mark, it would not be entitled to protection. CONCLUSION The Court agrees with Magistrate Judge Mann’s recommendation that defendants’ motion for summary judgment be granted. Plaintiffs federal infringement claim is therefore dismissed. SO ORDERED. REPORT AND RECOMMENDATION MANN, United States Magistrate Judge. Plaintiff The Jewish Sephardic Yellow Pages, Ltd. (“JSYP”) brought suit under the Lanham Act and New York state law against defendants DAG Media, Inc. (“DAG Media” or “DAG”) and its president and chief executive officer, Assaf Ran (“Ran”), alleging infringement of its unregistered trademark, “Kosher Yellow Pages.” Defendants have moved for summary judgment on plaintiffs federal infringement claim on the ground that plaintiffs mark is ineligible for trademark protection. The Honorable Raymond J. Dearie, the District Judge assigned to the case, has referred the motion to the undersigned magistrate judge for a Report and Recommendation. For the reasons that follow, this Court recommends that the motion for partial summary judgment be granted. I. INTRODUCTION Registration of trademarks in the United States Patent and Trademark Office-(“PTO”) is regulated by the Lanham Act, 15 U.S.C. § 1051 et seq., and regulations promulgated thereunder. The owner of a trademark used in commerce may request the registration of the mark by filing a verified written application with the PTO. A properly filed application will then be submitted to an examiner to determine whether the mark is eligible for registration. The PTO maintains two registers for trademarks. The Principal Register is the primary registry of trademarks maintained by the PTO. 15 U.S.C. §§ 1051-1072 (2000). Registration on the Principal Register is prima facie evidence of ownership of, and an exclusive right to use, a valid trademark. 15 U.S.C. § 1115(a). To qualify for registration on the Principal Register, a trademark must be distinctive of the applicant’s goods. 15 U.S.C. § 1052. If the PTO determines that a mark is not distinctive, and therefore not eligible for registration on the Principal Register, but is capable of becoming distinctive, that mark may be placed on the Supplemental Register. 15 U.S.C. § 1091. While registration on the Supplemental Register is not evidence of ownership, validity, or the exclusive right to use, such registration enables the registrant, inter alia, to sue for infringement in federal court. See In re Bush Bros. & Co., 884 F.2d 569, 571 n. 2 (Fed.Cir.1989). If, through continuous use in commerce, the mark acquires “secondary meaning” — that is, the mark comes to be uniquely associated with its source — it becomes eligible for registration on the Principal Register. 15 U.S.C. § 1052(f); see also Catherine Rowland, “2003 Trademark Law Decisions of the Federal Circuit,” 53 Am. U.L.Rev. 909, 925 n. 137 (2004). II. FACTUAL BACKGROUND Plaintiff JSYP is a New York corporation that publishes and distributes telephone directories geared toward Jewish communities in New York, New Jersey and Florida. (Declaration of David Ben Hooren in Support of Plaintiffs Application For a Temporary Restraining Order and Preliminary Injunction [“Ben Hooren TRO Decl.”] ¶ 7.) Plaintiffs first directory was published in 1997 under the name “The Sephardic Yellow Pages.” (ComplA 9.) At the time JSYP initiated this action, it had published five editions of “The Sephardic Yellow Pages”: 1997-98, 1998, 1999-2000, 2000-01 and 2008. (Id. ¶¶ 9-10.) In 1998 and 1999, JSYP developed advertisements promoting “The Sephardic Yellow Pages” as “The Only Kosher Yellow Pages” and ‘Tour Kosher Yellow Pages.” (Ben Hooren TRO Decl. ¶ 12 & Ex. E thereto; Defendants’ Rule 56.1 Statement of Material Facts Not in Issue [“Def. R. 56.1”] ¶23 & Ex. 23 thereto.) These advertisements appeared in the “Official Directory” for Kosherfest, an annual trade show for the kosher food industry, and in “Strictly Business,” a magazine targeted to the business community in Santa Maria, California. (Ben Hooren TRO Decl. ¶ 12 & Ex. E thereto.) On February 16, 1999, JSYP filed a trademark application with the PTO to register the term “Kosher Yellow Pages.” (Ben Hooren TRO Decl. ¶ 13 & Ex. F thereto.) The PTO denied the application on the ground that the term was “merely descriptive” and thus did not qualify for protection on the Principal Register. (Ben Hooren TRO Decl. ¶¶ 13, 28, 29 & Ex. F thereto.) In 2000, in addition to “The Sephardic Yellow Pages,” JSYP published a second directory called “Kosher Yellow Pages.” (Ben Hooren TRO Decl. ¶ 11 & Ex. D thereto; Plaintiffs Local Rule 56.1 Statement of Material Facts [“PI. R. 56.1”] ¶ 19.) The contents of the two directories were identical. (PL R. 56.1 ¶ 19.) Three more editions of “Kosher Yellow Pages” followed: 2001-02, 2003, and 2004. (Declaration of David Ben Hooren Submitted In Support of Plaintiffs Opposition to Defendants’ Motion for Summary Judgment [“Ben Hooren Opp. Decl.”] ¶ 8 & Ex. 2 thereto.) To promote its directories, JSYP distributes with each volume a “Kosher Discount Card,” with which consumers may obtain discounts of up to 10 percent from participating advertisers, and operates the “Kosher Referral Service,” a toll-free hotline (1-877-W-H-Y-KO-S-H-E-R) that matches consumers with advertisers who provide goods and services they are seeking. (Compl. ¶¶ 15, 16; Ben Hooren Opp. Decl. ¶¶ 19, 20 & Exs. 5, 6 thereto.) JSYP also owns two internet addresses, www. kosheryellowpages.com and syny.com, both leading to the same website where it maintains online versions of its directories. (Ben Hooren TRO Decl. ¶ 8.) Defendant DAG Media, a publicly traded company listed on the NASDAQ exchange under the symbol DAGM, began publishing and distributing “The Jewish Israeli Yellow Pages,” a bilingual (English-Hebrew) telephone directory, in the United States in 1990. (Defendants’ Answer to Verified Complaint, Counterclaim and Third Party Complaint [“Ans.”] ¶¶ 10-11) The directory is published twice annually and is distributed throughout New York, New Jersey and Florida. (Id. ¶¶ 11-12, 15.) In December 1998, DAG Media began publishing an English-only directory under the name “The Jewish Master Guide,” which is geared toward the Hasidic and ultra-Orthodox Jewish communities in the New York metropolitan area. (Id. ¶¶ 14,16.) In September 2002, DAG Media filed a trademark application with the PTO for registration of the mark, “The Kosher Yellow Pages,” claiming to have used the mark as early as February 1995 in advertising and marketing materials for sale of advertising space in its telephone directories. (Ben Hooren TRO Decl. ¶¶ 45-46 & Ex. X thereto.) In March 2003, the PTO denied the application on the ground that the term was “merely descriptive,” but invited DAG to amend its application to seek registration on the Supplemental Register (as a mark capable of becoming distinctive). (Ben Hooren TRO Decl. ¶ 48.) DAG submitted an application for reconsideration, which was also denied. (Ben Hooren TRO Deck, Ex. X; Declaration of Cathy E. Shore-Sirotin Submitted in Support of Plaintiffs Opposition to Defendants’ Motion for Summary Judgment, Ex. 1.) DAG then amended its application to seek registration on the Supplemental Register. (Ben Hooren TRO Decl. ¶ 48 & Ex. Y thereto.) On February 24, 2004, the PTO granted the amended application and registered “The Kosher Yellow Pages” on the Supplemental Register. (Ans. ¶ 18; Ben Hooren TRO Decl. ¶ 49.) At some point in time, no later than 2003, DAG Media began to publish a telephone directory called “The Kosher Yellow Pages” (PL R. 56.1 ¶ 21), the contents of which were identical to those of “The Jewish Master Guide.” (AnsY 23.) In February 2004, DAG acquired the domain name www.kosheryellowpages.net. (Ben Hooren TRO DeclJ 32 & Ex. Q thereto.) DAG Media is the owner of five trademarks on the Principal Register: “The Israeli Yellow Pages,” issued July 29,1997, “The Jewish Yellow Pages,” issued March 2, 1999, “The Jewish Master Guide,” issued July 25, 2000, “New Yellow,” issued November 12, 2002, and “The Only Kosher Directory,” issued July 15, 2008. It also owns three marks on the Supplemental Register, in addition to “The Kosher Yellow Pages”: “The Jewish Referral Service,” issued December 30, 1997, “The Kosher Directory,” issued May 11, 2004, and “The Kosher Referral Service,” issued May 19, 2005. (Ans. ¶ 17; see generally http://tess2.uspto.gov/bin/gate.exe?f= searchss & state=v90215.1.1.) On April 24, 2001, DAG Media filed a trademark action against JSYP and its founder and president, David Ben Hooren, in the United States District Court for the District of New Jersey, alleging that JSYP’s use of the terms “The Only Kosher Yellow Pages” and “The Jewish Community Referral Service” infringed on DAG’s common law trademark, “The Only Kosher Directory,” and federally registered trademark, “The Jewish Referral Service.” (Ans.lHI 52-54 & NJ CompLMf 9-11.) On February 1, 2002, following a hearing on DAG Media’s application for a preliminary injunction, the parties entered into a settlement agreement so-ordered by the Honorable William G. Bassler, and all claims were dismissed with prejudice. (Order on Settlement [Ran Deck, Ex. B].) Under the terms of the settlement agreement, JSYP agreed to discontinue its use of the common law marks “The Only Kosher Yellow Pages” and “The Jewish Community Referral Service,” and to cease distribution of all advertising and marketing materials containing these marks. (Settlement Agreement and Release [Ran Deck, Ex. B] at 3-4, 5-6.) JSYP was not prohibited from using the mark “Kosher Yellow Pages,” provided that it informed its advertisers that this directory was “in no way affiliated with DAG and its directories.... ” (Settlement Agreement and Release [Ran Deck, Ex. B] at 4-5.) JSYP initiated the instant lawsuit on February 24, 2004, alleging that DAG Media and Ran have used JSYP’s mark, “Kosher Yellow Pages,” in connection with the sale of their telephone directory, and that this use has misled customers into believing that DAG Media’s product is sponsored by, authorized by, or otherwise connected with JSYP. The first cause of action alleges false designation of origin, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The second through fifth claims allege violations of state statutes-to wit, unfair competition, trademark infringement, injury to business reputation, trademark dilution, and use of name with intent to deceive, in violation of sections 349, 360-K, 360-L, and 133 of New York’s General Business Law. Plaintiff seeks an accounting and, pursuant to 15 U.S.C. § 1119, cancellation of DAG Media’s mark, “The Kosher Yellow Pages,” currently on the Supplemental Register, on the ground that defendants’ application for registration was fraudulent. In their responsive pleading, defendants assert that their use of “The Kosher Yellow Pages” mark predated plaintiffs (see supra note 8), that DAG Media is the rightful owner of the mark, and that, through DAG Media’s “continuous advertising and promotion” of the product, “the name ‘The Kosher Yellow Pages’ has become well and favorably known to advertisers and end users as an indication of origin in DAG Media.” (Ans-¶ 34.) Moreover, complaining that JSYP’s use of the mark infringed defendants’ rights, the Answer also includes a series of counterclaims and third-party claims against plaintiff and its principal, David Ben Hooren, arising under the Lanham Act and New York statutory and common law. During a contentious period of discovery, which the Court had ordered on an expedited basis (3/3/04 Calendar Order), plaintiff accused defendants of fabricating evidence to corroborate their alleged early use of the mark by replacing the covers on directories originally published as “The Jewish Master Guide” with covers marked as “The Kosher Yellow Pages.” (6/21/04 Letter to the Court from Darren Oved.) Plaintiff also sought the Court’s intervention on numerous occasions to compel DAG Media to produce, or authorize its auditors to produce, financial documents that might shed light on when it began using the mark. (Letters to the Court dated 4/30/04, 5/7/04, 6/23/04 and 6/28/05, from Darren Oved.) Defendants denied any allegations of wrongdoing. {See 6/28/04 Letter to Judge Dearie from James Baxley.) On October 4, 2004, in an apparent about-face, defendants sought leave to move for summary judgment on the ground that neither party is entitled to ownership of the “[The] Kosher Yellow Pages” mark because it is generic. (10/04/04 Letter to Judge Dearie from Carl Bornstein [ECF Docket # 66].) Plaintiff argued in opposition that, because the ge-nericness defense represented an abrupt change of strategy on defendants’ part, very little discovery had been taken on that issue and a motion for summary judgment would therefore be premature. (11/24/04 Letter to Judge Dearie from Myron Greenspan.) On April 4, 2005, following a failed attempt at mediation (see 12/2/04 Order; 12/17/04 Endorsed Order), defendants filed the instant motion for summary judgment on plaintiffs Lanham Act claim, on the ground that “Kosher Yellow Pages” is ineligible for trademark protection because the term is generic or, in the alternative, merely descriptive without having acquired secondary meaning. On September 16, 2005, Judge Dearie referred the motion to the undersigned magistrate judge. (9/16/05 Order.) This Court heard oral argument on January 27, 2006. In response to plaintiffs argument that discovery had not been conducted with respect to defendants’ new theory, the Court directed the parties to submit a report detailing what, if any, additional discovery they wished to take or to proffer in connection with the motion. (1/27/06 Calendar Order.) Plaintiff thereafter advised the Court that it had “no plans or intentions of taking further discovery of Defendants” but that it was prepared to respond to defendants’ long pending requests for discovery concerning secondary meaning. (2/17/06 Letter to the Court from Myron Greenspan at 1, 2; see 2/28/06 Calendar Order at 2.) In a telephonic conference on February 28, 2006, the Court set a schedule for supplemental submissions from the parties on the issue of secondary meaning, which submissions have now been filed. (See Revised Plaintiffs Supplemental Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment [“PI. Supp. Mem.”]; Supplemental Declaration of David Ben Hooren [“Ben Hooren Supp. Decl.”]; Defendants’/Third-Party Plaintiffs’ Supplemental Memorandum Re Secondary Meaning [“Def. Supp. Mem.”].) Defendants have stipulated that, if they prevail on their motion, they will withdraw their counterclaims, “with prejudice if need be.” (3/1/06 Letter to the Court from Mark Heinze; see 2/18/06 Calendar Order at 1.) III. DISCUSSION A. Estoppel As an initial matter, plaintiff contends that defendants are estopped from arguing that “Kosher Yellow Pages” is generic by reason of them previous assertions to the PTO, while applying to register the mark, that it is distinctive. (Plaintiffs Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment [“PL Mem.”] at 6-9.) In support of this argument, plaintiff cites Feathercombs, Inc. v. Solo Products Corp., 306 F.2d 251, 256 (2d Cir.1962), and Plus Products v. Natural Organics, Inc., No. 81 Civ. 1798, 1984 WL 33, at *3, 223 U.S.P.Q. 27(BNA) (E.D.N.Y. Feb.3, 1984), in which the defendants’ pri- or attempts to register marks were held to bar them from recharacterizing their use of the marks when sued for trademark infringement. Plaintiffs reliance on Feathercombs and Plus Products is misplaced. Unlike the case at bar, where defendants claim that plaintiffs mark is generic and therefore unprotectable, the defendants in Feather-combs and Plus Products each conceded initial validity of the mark and instead asserted a defense of fair use, a doctrine that allows one to use another’s protected mark where such use is done “fairly and in good faith,” solely to describe aspects of that party’s own goods or services. See 15 U.S.C. § 1115(b)(4); Car-Freshner Corp. v. S.C. Johnson & Son, 70 F.3d 267, 269 (2d Cir.1995) (“The principle ... protects the right of society at large to use words or images in their primary descriptive sense, as against the claims of a trademark owner to exclusivity.”). In other words, the critical issue in Feathercombs and Plus Products was the defendants’ state of mind in using the marks; their attempts to register the marks established their intent to use the terms in a trademark sense, rather than in a merely descriptive sense, and thus belied their defense of good faith fair use. The defendants in those cases were therefore barred from asserting the fair use defense. See Feathercombs, 306 F.2d at 256 (holding that the defendant’s prior application for registration of a mark served as conclusive evidence that it “intended to usé the term ... in a trademark sense.”); accord Plus Products, 1984 WL 33, at *3. In contrast, where, as here, a defendant asserts a defense of genericness against a claim of infringement of an unregistered mark, the critical issue is whether the mark is generic, and good faith is beside the point. Contrary to the assumption underlying plaintiffs opposition papers (PI. Mem. at 1, 20), once the defense of genericness is raised, it is plaintiffs burden to establish that the unregistered mark is not generic, rather than defendant’s burden to prove that it is. See Reese Publ’g Co. v. Hampton Int’l Commc’n Inc., 620 F.2d 7, 11 (2d Cir.1980); accord Star Indus., Inc. v. Bacardi & Co. Ltd. Corp., No. 02 Civ. 4239(HB), 2003 WL 23109750, at *4 (S.D.N.Y. Dec.31, 2003). Plaintiff cannot prevail on its infringement claim unless it offers sufficient indicia of the mark’s distinctiveness, notwithstanding defendants’ inconsistent positions on this issue. See Brandwynne v. Combe Int’l, Ltd., 74 F.Supp.2d 364, 382 n. 12 (S.D.N.Y.1999) (rejecting similar estop-pel argument, as “defendants’ mere use of the ‘TM’ symbol would not bestow a generic term with valid trademark status.”); Network Computers, Inc. v. Network Computer, Inc., No. 97 Civ.01908 MHP, 1997 WL 601433, at *4 (N.D.Cal. Sept.16, 1997) (rejecting plaintiffs contention that defendant’s prior application for trademark protection barred it from arguing that the mark was generic; because it was plaintiffs burden to prove the mark was not generic, “[defendant’s] inconsistent actions do not necessarily show that the [ ] term is not generic to the relevant public. If the [ ] term is generic neither [ ] defendants nor plaintiff may protect” it.); Domino’s Pizza, Inc. v. Little Caesar Enters., 7 U.S.P.Q.2d 1359, 1988 WL 252360, at *6 (P.T.O. Apr. 29, 1988) (rejecting contention that a party who previously appended trademark symbols to terms was estopped from arguing, in opposing another party’s subsequent registration of those terms, that the terms were merely descriptive and could not function as trademarks; “the fact that opposer once indicated a different opinion than it now maintains would simply be one fact to be considered, together with all of the other facts of record ... in our determination....”). Thus, the rulings in Feathercombs and Plus Products are inapposite. See Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366, 375 n. 7 (1st Cir.1980) (rejecting plaintiffs reliance on Feathercombs and holding that defendant in trademark infringement action may assert defense of genericness despite having attempted to register the allegedly infringing mark). Plaintiffs invocation of the doctrine of equitable estoppel is similarly unavailing, as plaintiff cannot demonstrate the requisite elements of reliance and injury. See Gimix, Inc. v. JS & A Group, Inc., 699 F.2d 901, 905 n. 3 (7th Cir.1983) (defendant not equitably estopped from raising genericness defense, even though it had previously sought registration of the mark, in part because “the elements of reliance and injury necessary to estoppel are absent _”); accord Technical Publ’g Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir.1984); Keebler, 624 F.2d at 374 n. 7 (defendant not barred from arguing genericness where plaintiff could not show that it was “prejudiced by the opposing party’s inconsistency.”); Ideal World Mktg., Inc. v. Duracell, Inc., 15 F.Supp.2d 239, 245 n. 3 (E.D.N.Y.1998) (“[Defendant’s] abortive efforts to secure trademark protection for the term ‘PowerCheck’ do not preclude it from arguing [on summary judgment] motion that the term is descriptive. There has been no showing of misrepresentation or reliance that could arguably estop [defendant] from maintaining its current position.”). In view of this Court’s offer to reopen discovery on the issue of genericness — an offer that plaintiff decline — plaintiff cannot claim that it relied in any way on defendants’ prior position concerning the distinctiveness of the “Kosher Yellow Pages” mark, or that plaintiff was injured by any such reliance. See Keebler, 624 F.2d at 374 n. 7 (noting that the requisite injury might be said to have occurred if defendant gained some competitive advantage, such as a favorable licensing agreement with plaintiff that was based on an acknowledgment of the validity of the trademark). In a related argument, plaintiff further contends argues that defendants’ original theory in this litigation — that the mark was protectable and that defendants had priority of use — constitutes a judicial admission of descriptiveness, and that defendants should therefore not be heard to argue that the mark is generic. (PI. Mem. at 9-11.) See generally Young v. U.S. Dep’t of Justice, 882 F.2d 633, 639 (2d Cir.1989) (“[T]he judicial-estoppel doctrine, where it is recognized, may prevent a party who benefits from the assertion of a certain position, from subsequently adopting a contrary position.”). However, defendants’ admission — while probative and admissible-is, under the circumstances, not a binding one. See Black & Decker Corp. v. Dunsford, 944 F.Supp. 220, 225 n. 7 (S.D.N.Y.1996) (noting that defendants’ “so-called judicial admissions of descriptiveness” in the answer and counterclaim “do not constitute binding admissions that the mark is descriptive.”); see also Interstate Brands Corp. v. Celestial Seasonings, Inc., 576 F.2d 926, 929 & n. 2 (C.C.P.A. 1978) (“That a party earlier indicated a contrary opinion respecting the conclusion in a similar proceeding involving similar marks and goods is a fact, and that fact may be received in evidence as merely illuminative of shade and tone in the total picture confronting the decision maker. To that limited extent, a party’s earlier contrary opinion may be considered relevant and competent. Under no circumstances, may a party’s opinion, earlier or current, relieve the decision maker of the burden of reaching his own ultimate conclusion on the entire record.”). The federal rules treat inconsistent pleadings liberally. See Keebler, 624 F.2d at 374 n. 7 (noting that, under Fed.R.Civ.P. 8(e)(2), a defendant may assert a counterclaim that is inconsistent with an affirmative defense raised in the same pleading, and may present a defense inconsistent with a position taken under oath in a separate prior proceeding); accord Nestle Co., Inc. v. Chester’s Mkt., Inc., 571 F.Supp. 763, 768 (D.Conn.1983), rev’d and remanded on other grounds, 756 F.2d 280 (2d Cir.1985). Consequently, here, as in various other cases, defendants should be permitted to assert a defense of genericness to an infringement claim despite their prior attempt to register the mark and their prior litigation strategy in this case. See, e.g., Keebler, 624 F.2d at 374 n. 7; Ideal World, 15 F.Supp.2d at 245 n. 3 (“[N]or does [defendant’s] initial decision to attempt to register PowerCheck as a trademark constitute a judicial admission against interest.”); Black & Decker, 944 F.Supp. at 225 n. 7; Nestle, 571 F.Supp. at 768 (genericness defense “was not barred by the federal rules, notwithstanding [defendant’s] seemingly inconsistent Puerto Rican trademark application.”). B. Legal Standard for Summary Judgment A district court may not grant a motion for summary judgment unless it is satisfied that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ideal World, 15 F.Supp.2d at 242. The moving party bears the initial responsibility of “identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R.Civ.P. 56(c)). Once the moving party has met its burden, the party opposing the motion must set forth specific facts showing that there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(c). The opposing party may not rely on mere con-clusory assertions, but instead must present evidence sufficient to enable the fact-finder to return a verdict in favor of that party. See Anderson, 477 U.S. at 248-49, 106 S.Ct. 2505 (noting that a factual dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”). In reviewing a motion for summary judgment, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Horizon Mills Corp. v. QVC, Inc., 161 F.Supp.2d 208, 211 (S.D.N.Y.2001); GMT Prods., L.P. v. Cablevision of N.Y. City, Inc., 816 F.Supp. 207, 209-10 (S.D.N.Y. 1993). The judge’s role is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. These principles apply with equal force to trademark cases. Although the “classification [of a mark] is a fact-bound determination,” Genesee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 144 (2d Cir.1997), “[w]hen reasonable minds could not differ as to the import of the proffered evidence, then summary judgment is proper.” Horizon Mills, 161 F.Supp.2d at 211; see Door Sys., Inc. v. Pro-Line Door Sys., Inc., 88 F.3d 169, 171 (7th Cir.1996) (“[A]s with any question of fact, [the classification of a mark] can be resolved on summary judgment if the evidence is so one-sided that there can be no doubt about how the question should be answered.”). “Summary judgment is improper if there is any evidence in the record from which a fair inference may be drawn on a material issue of fact in favor of the party opposing summary judgment.” Black & Decker, 944 F.Supp. at 224 (citing Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994)). C. Lanham Act Standards Section 43(a) of the Lanham Act protects owners of both registered and unregistered marks from the use in commerce of any word, term, name or symbol that is likely to cause confusion as to the origin or sponsorship of goods or services. 15 U.S.C. § 1125(a); see Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (“[I]t is common ground that § 43(a) protects qualifying unregistered trademarks and that the general principles qualifying a mark for registration under § 2 of the Lanham Act are for the most part applicable in determining whether an unregistered mark is entitled to protection under § 43(a).”). To prevail on a claim under Section 43(a), a plaintiff must show that (1) it has a valid trademark entitled to protection, and (2) the defendant’s mark infringes on the plaintiff's mark by causing a likelihood of confusion among consumers as to the origin or sponsorship of its product. See Time, Inc. v. Petersen Publ’g Co., 173 F.3d 113, 117 (2d Cir.1999); Genesee Brewing, 124 F.3d at 142; Arrow Fastener Co. v. Stanley Works, 59 F.3d 384, 390 (2d Cir.1995). Where, as here, the plaintiffs mark is unregistered, the plaintiff bears the burden of proving that its mark is valid, which includes the burden of rebutting a defense that the unregistered mark is “generic” and un-protectable. See Reese Publ’g, 620 F.2d at 11; Horizon Mills, 161 F.Supp.2d at 215 n. 8. If plaintiff cannot establish that its mark is entitled to protection, the Court need not consider the second prong of the test, likelihood of confusion. A mark is valid if it is sufficiently distinctive. The Second Circuit and other courts have established categories for classifying marks. “Arrayed in ascending order which roughly reflects their eligibility to trademark status and the degree of protection accorded, these classes are (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful.” Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1039 (2d Cir.1992) (quoting Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976)). A generic term consists of words that simply identify a class or genus of goods to which a particular product belongs. See TCPIP Holding Co., Inc. v. Haar Commc’ns, Inc., 244 F.3d 88, 93 (2d Cir.2001); Abercrombie & Fitch, 537 F.2d at 9. It is “the name of a product or service itself,” disclosing “what it is,” rather than describing a particular characteristic of the product or service. 2 McCarthy on Trademarks and Unfair Competition § 12:1 (4th ed.1997); see Horizon Mills, 161 F.Supp.2d at 211 (a generic term is “commonly used as the name for a type of goods.”). Examples of generic terms include “Ale House” for an establishment that sells food and beer, see Ale House Mgmt., Inc. v. Raleigh Ale House, Inc., 205 F.3d 137, 140-41 (4th Cir.2000), “Cellular Sales” for the sale of cellular telephones, see Cellular Sales, Inc. v. Mackay, 942 F.2d 483, 486 (8th Cir.1991), “Light Beer” for beer that is light in body and taste, see Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 80 (7th Cir.1977), “Screenwipe” for a cloth used for cleaning computer and television screens, see In re Gould Paper Corp., 834 F.2d 1017, 1018-19 (Fed.Cir.1987), and “The Arabic Channel” for an Arabic language television channel. See GMT Prods., 816 F.Supp. at 207; see also 2 McCarthy § 12:18. Generic terms are never accorded trademark status, because to do so would grant a first-user a monopoly over common descriptive words that merely identify goods and services, depriving competitors of the opportunity to refer to their own goods and services as what they are. See PaperCutter, Inc. v. Fay’s Drug Co., 900 F.2d 558, 562 (2d Cir.1990) (“[CJonventional wisdom holds that generic terms ... are so useful to businesses selling the same product that no amount of money poured into promoting customers’ association of generic terms with a particular source can justify ‘depriving competing manufacturers of the product of the right to call an article by its name.’ ”) (quoting Abercrombie & Fitch, 537 F.2d at 9); CES Publ’g Corp. v. St. Regis Publ’ns, 531 F.2d 11, 13 (2d Cir.1975). “This rule [also] protects the interest of the consuming public in understanding the nature of goods offered for sale.... ” Otokoyama Co. Ltd. v. Wine of Japan Import, Inc., 175 F.3d 266, 270 (2d Cir.1999). Next in the classification hierarchy is the descriptive mark, which is one that “conveys an immediate idea of the ingredients, qualities, or characteristics of the goods.” Bernard v. Commerce Drug Co., 964 F.2d 1338, 1341 (2d Cir.1992); see PaperCutter, 900 F.2d at 563 (descriptive terms are those “conveying the characteristics of the goods, services or business, or indicating the purpose, function, size, quantity, capacity, or merits of a product, the effects of its use, or the class of intended purchasers.”) (internal quotation marks and citation omitted). “A term can be descriptive in two ways: ‘[i]t can literally describe the product, or it can describe the purpose or utility of the product.’ ” Centaur Commc’ns, Ltd. v. A/S/M Commc’ns, 830 F.2d 1217, 1220 (2d Cir.1987) (quoting 20th Century Wear, Inc. v. Sanmark-Stardust Inc., 747 F.2d 81, 87 (2d Cir.1984)); see PaperCutter, 900 F.2d at 563. Terms held to be descriptive include “Apple Rai sin Crisp” for breakfast cereal, see Gen. Mills, Inc. v. Kellogg Co., 824 F.2d 622, 625 (8th Cir.1987), “The Sports Authority” for a sporting goods store, see Sports Authority, Inc. v. Prime Hospitality Corp., 89 F.3d 955 (2d Cir.1996), “Snakelight” for a flashlight with a flexible neck, see Black & Decker, 944 F.Supp. at 225, and “Tasty” for salad dressing, see Henri’s Food Prods. Co. v. Tasty Snacks, Inc., 817 F.2d 1303, 1306 (7th Cir.1987); see also 2 McCarthy § 12:19. A descriptive term is eligible for trademark protection only if it acquires distinctiveness — also known as secondary meaning — such that the public has come to associate the mark primarily with its user. See PaperCutter, 900 F.2d at 562 (“[D]e-scriptive terms may, unlike generic terms, become entitled to protection if the ‘descriptive meaning’ of a word becomes subordinate and the term instead becomes primarily a symbol of identification, a process by which, put another way, the term acquires ‘secondary meaning.’ ”). In contrast, a suggestive mark is one that does not describe, but merely suggests, the features of a product, requiring the purchaser to use “imagination, thought and perception to reach a conclusion as to the nature of goods.” Time, Inc. v. Petersen Pub. Co. L.L.C., 178 F.3d 113, 118 (2d Cir.1999) (internal quotation marks and citation omitted). Examples of suggestive marks include “At A Glance” for calendars, see Cullman Ventures, Inc. v. Columbian Art Works, Inc., 717 F.Supp. 96, 119-20 (S.D.N.Y.1989), “Citibank” for an urban bank, see Citigroup Inc. v. City Holding Co., 171 F.Supp.2d 333 (S.D.N.Y.2001), “Habitat” for home furnishings, see Habitat Design Holdings, Ltd. v. Habitat, Inc., 436 F.Supp. 327, 331 (S.D.N.Y.1977), and “L’eggs” for women’s hosiery, see Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 465 (4th Cir.1996); see also 2 McCarthy § 11:72. A suggestive mark is considered inherently distinctive, and is protected without a showing of secondary meaning. Lastly, arbitrary marks are those that employ common words in an uncommon way, such as “Ivory” for soap, while fanciful marks use words that were coined specifically to serve as a trademark, such as “Kodak” or “Exxon.” See Gruner + Jahr USA Publ’g v. Meredith Corp., 991 F.2d 1072, 1075-76 (2d Cir.1993). Arbitrary and fanciful marks are, like suggestive ones, inherently distinctive, and they receive the highest degree of trademark protection. Id. at 1076. Contrary to defendants’ assumption, the classification of a mark “is a question of fact left to the determination of the district court.” Black & Decker, 944 F.Supp. at 225 (quoting Bristol-Myers, 973 F.2d at 1039-40). This is not an easy task, as “[t]he lines of demarcation ... are not always bright.” Abercrombie & Fitch, 537 F.2d at 9; see also Thompson Med. Co. v. Pfizer, 753 F.2d 208, 212 (2d Cir.1985) (noting that distinguishing the generic from the descriptive requires courts to make “[r]azor-thin judgment calls.”). Compounding the difficulty of this undertaking is the fact that a mark’s classification differs depending upon the goods it identifies. See Abercrombie & Fitch, 537 F.2d at 8. To take an oft-cited example, “the word ‘apple’ would be arbitrary when used on personal computers, suggestive when used in ‘Apple-A-Day’ on vitamin tablets, descriptive when used in ‘Tomap-ple’ for combination tomato-apple juice and generic when used on apples.” Bristol-Myers, 973 F.2d at 1041 (citing 1 J.T. McCarthy, Trademarks & Unfair Competition § 11:22 at 498-99 (2d ed.1984)); Black & Decker, 944 F.Supp. at 225; see also Genesee Brewing, 124 F.3d at 148 (holding that “Honey Brown” is generic when applied to ales, but may be descriptive when applied to lagers). D. Classification of Plaintiffs Mark Defendants argue that plaintiffs mark is either inherently generic or descriptive (without secondary meaning), while plaintiff contends that the mark is suggestive, or at the very least descriptive (with secondary meaning). Before addressing defendants’ genericness argument, the Court will first consider plaintiffs contention that the mark is suggestive. 1. Suggestive vs. Descriptive Plaintiffs assertion that “Kosher Yellow Pages” is suggestive cannot withstand scrutiny. Plaintiff argues that the term does not immediately convey an idea of the nature of the product because it could refer to a “directory of kosher food, kosher utensils, stores selling kosher or Judaic products, or a listing of kosher restaurants.” (PL Mem. at 26.) However, in order to be found descriptive rather than suggestive, “it is not necessary that a mark evoke in a customer’s mind a precise vision of the product it identifies, but simply that the mark convey ‘an immediate idea of some characteristic or attribute’ of the product.” Tiny Tot Sports, Inc. v. Sporty Baby, LLC, No. 04 Civ. 4487(DLC), 2005 WL 2044944, at *4 (S.D.N.Y. Aug.24, 2005) (holding that marks such as “Baby Golf’ and “Baby Baseball” for videos introducing babies to sports are “descriptive as a matter of law,” even though the videos contain many elements that are not apparent from the “Baby” marks themselves) (quoting Bernard v. Commerce Drug Co., 964 F.2d 1338, 1341 (2d Cir.1992) (affirming ruling that PHYSICIANS FORMULA is descriptive, not suggestive, and noting that “it is not necessary ... that the term also describe the specific ... characteristics of the product ... in order for the term to be descriptive.”)). In Bristolr-Myers, the maker of Excedrin PM, an over-the-counter analgesic/sleep aid, argued that the mark “PM” is suggestive because a “consumer must engage in a multi-step analysis before coming to the conclusion that it denotes the presence of a sleep aid in the analgesic.” 973 F.2d at 1040. Specifically, Bristol-Meyers argued, the consumer must first “eliminate possible alternate meanings for ‘PM’ — e.g., ‘Pre-Menstrual’ or ‘Pain Medication’ — before arriving at ‘Posh-Meridiem,’ ” then must “make a leap from all the post meridiem hours to those at night,” and finally must make another “intellectual leap from nighttime to sleeping.” Id. at 1040. The lower court rejected this argument and the Second Circuit affirmed, noting that, while “PM” in connection with Excedrin does not literally describe the presence of a sleep aid in the product, “it refers to the purpose or utility of the product — it is an analgesic that should be used at night.” Id. “Once the consumer arrives at an awareness that the product is useful at nighttime, the ‘purpose or utility’ of the product has been conveyed, even though the consumer is not aware of why the product is useful at night.” Id. at 1041. So too here, while “Kosher Yellow Pages” does not describe the precise nature of the business listings contained in plaintiffs directory, a consumer need not employ imagination, reflection, or a “multistage reasoning process” to understand that the mark denotes an alphabetized directory of businesses that in some manner appeal to consumers who observe or are otherwise interested in Kosher laws. See, e.g., Frosty Treats, Inc. v. Sony Computer Entm’t Am. Inc., 426 F.3d 1001, 1005 (8th Cir.2005) (holding that “ ‘Frosty Treats’ is, at best, descriptive” of a business that sells frozen desserts out of ice cream trucks, as the term “conveys an immediate idea of the qualities and characteristics of the goods that it sells.”); Thompson Med., 753 F.2d at 216 & n. 15 (holding that “Sport-screme” is descriptive of a cream useful in sports even though the term is “inadequately descriptive” as to the “significance of the product — i.e., whether it is useful to relieve dryness, itchiness, odor or pain.”); McSpadden v. Caron, No. 03-CV-6285 CJS, 2004 WL 2108394, at *13 (W.D.N.Y. Sept.20, 2004) (ruling that usamedi-cine.com trademark is descriptive, not suggestive, as used in connection with a website selling prescription drugs); Ideal World, 15 F.Supp.2d at 244 (“Power-Check,” as applied to batteries featuring an on-battery tester of remaining battery power, is not suggestive, because it “conveys the immediate idea of the characteristics of the product.”) (internal quotations and citation omitted); Black & Decker, 944 F.Supp. at 225 (holding that “Snakelight” is descriptive of a light fixture that can be bent or coiled). 2. Descriptive vs. Generic The more intricate issue in this case concerns the classification of the “Kosher Yellow Pages” mark as either descriptive or generic. The test for gener-icness is based upon “the primary significance of the [ ] mark to the relevant public.” Trademark Clarification Act of 1984, Pub.L. No. 98-620 (codified at 15 U.S.C. § 1064). The “primary significance test” asks whether the consuming public understands and commonly uses the term to denote a particular source or origin of a product, even if that source is unknown (in which case the mark is descriptive), as opposed to the nature or class of the product (in which case the mark is generic). See Kellogg Co. v. Nat’l Biscuit Co., 305 U.S. 111, 113, 59 S.Ct. 109, 83 L.Ed. 73 (1938) (under the “primary significance test,” a plaintiff seeking to establish a valid trademark “must show that the primary significance of the term in the minds of the consuming public is not the product but the producer.”); Genesee Brewing, 124 F.3d at 144; Horizon Mills, 161 F.Supp.2d at 212-13. A mark’s common usage and understanding by the relevant public may be discerned from “any competent source,” In re Merrill Lynch, 828 F.2d 1567, 1570 (Fed.Cir.1987), including consumer surveys, testimony of consumers or trade professionals, dictionary definitions, uncontested usage of the mark by competitors to describe their products, generic usage in newspaper and magazine articles, and generic usage by the proponent of the trademark. See id.; Harley Davidson, Inc. v. Grottanelli 164 F.3d 806, 810-11 (2d Cir.1999); Murphy Door Bed Co. v. Interior Sleep Sys., Inc., 874 F.2d 95, 101 (2d Cir.1989); Brandwynne, 74 F.Supp.2d at 381-82. No single factor is dispositive. See Horizon Mills, 161 F.Supp.2d at 214 (citing Murphy Door Bed, 874 F.2d at 101). a. Dictionary deñnitions Defendants rely heavily on dictionary definitions to support their contention that “Kosher Yellow Pages” is inherently generic. They note that “kosher” and “yellow pages” are generic terms appearing in the dictionary and argue that their combination yields a composite phrase that is similarly generic because it has the same meaning as the individual words. (Def. Mem. at 2, 20-24.) Plaintiff does not dispute that each term, standing alone, is generic. (PI. Mem. at 11 n. 6.) “Kosher” is defined in the dictionary as follows: “1. sanctioned by Jewish law: ritually fit, clean, or prepared for use according to Jewish law (kosher meat); 2. selling, serving or using food that is ritually fit according to Jewish law (a kosher restaurant); 3. genuine, legitimate, proper (‘tried to stop me from withdrawing the money, sensing that something was not kosher, but I wouldn’t listen.’).” Webster’s Third New International Dictionary 1255 (1993). The term “yellow pages” is defined as “the section of a telephone directory on yellow paper and listing business subscribers according to the goods or services they offer.” Oxford American Dictionary and Language Guide 1174 (1999). The parties disagree, however, on whether the mark “Kosher Yellow Pages” is as generic as its component parts. Dictionary definitions are relevant in assessing a mark’s genericness “because they reflect the general public’s perception of a mark’s meaning and implication.” Murphy Door Bed, 874 F.2d at 101. Nevertheless, dictionary definitions are far from dispositive; indeed, they are often of little use when analyzing a composite mark such as “Kosher Yellow Pages,” because “[w]ords which could not individually become a trademark may become one when taken together.” Blinded Veterans Ass’n v. Blinded Am. Veterans Found., 872 F.2d 1035, 1041 (D.C.Cir.1989) (quoting Union Carbide Corp. v. Ever-Ready Inc., 531 F.2d 366, 379 (7th Cir.1976)); Texas Pig Stands, Inc. v. Hard Rock Cafe Int'l, Inc., 951 F.2d 684, 692 (5th Cir.1992) (“If [plaintiff] had claimed the rights to either of the terms, ‘pig’ or ‘sandwich,’ standing alone, without a doubt such a term would be generic, and thus unprotectable. When these two words are combined, however, they may attain protectable status.”). Courts have eschewed the simplistic notion that “generic plus generic equals generic,” Filipino Yellow Pages, Inc. v. Asian Journal Publ’ns, Inc., 198 F.3d 1143, 1148 (9th Cir.1999), preferring to consider a trademark in its entirety, rather than as “elements separated and considered in detail.” Black & Decker, 944 F.Supp. at 225 n. 6. Simply put, a “composite mark [ ] must be treated as a whole for classification purposes.” Courtenay Commc’ns Corp. v. Hall, 334 F.3d 210, 215 (2d Cir.2003) (holding that district court erred in concluding that if words used in a mark are generic, the mark is necessarily unprotectable). Thus, “the question of whether or not [a] composite mark is entitled to protection ultimately turns on whether it, as a whole, is distinctive.” Id. at 217. While “kosher” and ‘Yellow Pages” are each generic terms, their pairing creates a non-intuitive phrase that does not “immediately and unequivocally describe[] the purpose and function” of plaintiffs product. In re Merrill Lynch, 828 F.2d at 1571 (holding that the term “CASH MANAGEMENT ACCOUNT” is “merely descriptive,” not generic, and reversing decision of Trademark Trial and Appeal Board [“TTAB”] as clearly erroneous). Indeed, defendants themselves have not been consistent in articulating the allegedly unambiguous import of the compound term at issue here. Defendants concede, as they must, that a directory cann