Full opinion text
ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION MARGARET M. MORROW, District Judge. Plaintiff Aurora World, Inc. commenced this action on November 17, 2009, alleging copyright and trademark infringement, as well as state law unfair competition and misappropriation claims. Shortly thereafter on November 19, 2009, plaintiff filed a motion for preliminary injunction, which if granted would enjoin defendant Ty Inc. from selling or marketing its line of Beanie Boo dolls. On December 2, 2009, Ty opposed plaintiffs motion. I. FACTUAL BACKGROUND Aurora is one of the world’s leading manufacturers of soft toys in the global gift industry. In or before January 2007, Aurora launched its YooHoo & Friends brand of plush toy characters. In addition to these stuffed toys, Aurora has created a virtual world (i.e., an interactive website) called YooHoo & Friends that is populated by characters known as the “YooHoos.” The YooHoos are animals, many of which are endangered species. Plaintiff asserts that the plush toys “possess a distinctive look and feel, characterized by large heads, specially-tooled and designed large round eyes with large black pupils and colored borders, and recognizable stitching patterns, expressions, and color elements.” YooHoo & Friends products include the website, a catalog, an animated series currently airing in Korea, and the plush toys, together with peripheral items such as notepads, pins, and keychains. YooHoo & Friends products have been sold in Korea, the United Kingdom, and Saudi Arabia, as well as in the United States and other countries. Aurora is currently pursuing co-marketing opportunities with several nationwide retail and restaurant chains and recreation sites in the United States. The complaint alleges that since launching the YooHoo & Friends brand, Aurora has expended substantial time, energy, and effort creating and promoting the brand internationally. YooHoo & Friends plush toys have generated millions of dollars in revenue worldwide, and Aurora has applied for or obtained copyrights in at least some of the YooHoo & Friends characters. Ty is a direct competitor of Aurora in the plush toy market. Aurora alleges that at some point in 2009, Ty released a line of plush animal toys called the Beanie Boos. Since their release, Ty has sold six Beanie Boo products in the United States: Kooky the Koala (item number 36001), Kiwi the Frog (item number 36004), Bamboo the Panda (item number 36005), Waddles the Penguin (item number 36008), Coconut the Monkey (item number 36003), and Slush the Husky Dog (item number 36006). In addition, Ty has developed two Beanie Boos, named Cleo the Bush Baby and Bubblegum the Lemur. Ty asserts these toys have been sold in Europe and Canada only; that they are not currently listed on any order form Ty uses in the United States; that they are not currently depicted on T/s website; and that Ty has no intention of selling or offering them for sale in the United States pending final resolution of this lawsuit. Aurora contends that a “side-by-side comparison of the plush animals and the facts of this case clearly reveal” that the Beanie Boos are “remarkably similar” to Aurora’s YooHoo & Friends. In this regard, it identifies the distinctive features of YooHoo & Friends “are ... large, round eyes, with large black pupils and colored borders .... placed close together on the front of each character’s face,” and “recognizable stitching patterns, expressions, and color elements.” Since 2007, Aurora has been using the trademarks YooHoo and YooHoo & Friends in connection with the advertising and sale of plush toys. It asserts that it has registered the YooHoo brand name in at least one other country. On December 28, 2008, Aurora filed an application with the United States Patent and Trademark Office to register the YooHoo trademark in the United States. On October 2, 2009, Aurora’s senior vice president for sales received an email from Bev Silvey, an independent contractor for Aurora who is the sales representative for North Carolina and Myrtle Beach. Silvey forwarded an email from one of her commercial customers, which stated that the customer “didn’t know if you guys had seen these from Ty? Total rip off!” Smiley observed that Ty’s products were “exact copies of our Yoo-Hoo’s, it is unbelievable.” The email does not attach any photographs or images; consequently, the court cannot determine whether either email refers to Beanie Boos or to any particular Beanie Boo toy. On October 10, 2009, Aurora received an email from two Ty product collectors, apparently in the United Kingdom, who run a website for Ty collectors. Their email stated that they were “immediately struck by the similarity between” the YooHoos and the Beanie Boos, and that the similarity between Ty’s and Aurora’s lemurs “goes beyond mere coincidence.” On November 13, 2009, Aurora’s director of sales received an email from the manager of retail operations for the Calgary Zoo in Canada asking if Aurora made Beanie Boos because “[t]hey look very much like” the YooHoos. On October 12, 2009, Aurora advised Ty in writing of Aurora’s copyrights and trademarks and accused Ty of infringing its intellectual property rights in the United Kingdom. On October 16, 2009, Ty’s counsel denied that any infringement had occurred. Aurora alleges that Ty’s purported imitation of Yoo-Hoo & Friends products is causing actual confusion in the marketplace and diminishing the value of the YooHoo & Friends products by diluting their unique, distinctive nature and leading consumers erroneously to associate Yoo-Hoo & Friends with Ty rather than Aurora. Aurora asserts that Ty is trading on the goodwill Aurora has built through its development of innovative and unique designs. It contends that in addition to being the most important sales period for plush toy makers, the holiday season is when retailers test how well products fare in the marketplace; as a result, it asserts, orders for 2010 and beyond will be affected by decreased holiday sales. On November 17, 2009, Aurora commenced suit, alleging claims for copyright infringement, trade dress infringement, unfair competition, and false designation of origin under the Lanham Act, unfair competition under California Business & Professions Code §§ 17200 et seq., common law misappropriation, and common law unfair competition. Aurora seeks of preliminary and permanent injunctions, an award of Ty’s profits, actual damages, attorneys’ fees and costs, punitive damages, and interest. II. DISCUSSION A. Standard Governing Preliminary Injunctive Relief A “preliminary injunction is an extraordinary and drastic remedy.” Munaf v. Geren, 553 U.S. 674, 128 S.Ct. 2207, 2219, 171 L.Ed.2d 1 (2008). Thus, a district court should enter a preliminary injunction only “upon a clear showing that the plaintiff is entitled to such relief.” Win ter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 375, 172 L.Ed.2d 249 (2008). Such a showing requires that plaintiff establish it “is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 129 S.Ct. at 374. See Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir.2009) (“Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest”). See also Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir.2009) (“To qualify for injunctive relief, the plaintiffs must establish that ‘the balance of equities tips in [their] favor,’ ” quoting Winter, 129 S.Ct. at 374); American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009) (“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits,” citing Winter, 129 S.Ct. at 374); Timbisha Shoshone Tribe v. Kennedy, 687 F.Supp.2d 1171, 1182 (E.D.Cal.2009) (“Pursuant to Winter, [pjlaintiffs must make a ‘clear showing’ that they are ‘likely to succeed on the merits,’ ” quoting Winter, 129 S.Ct. at 375-76). “[Preliminary injunctive relief is available only if plaintiffs ‘demonstrate that irreparable injury is likely in the absence of an injunction.’ ” Johnson v. Couturier, 572 F.3d 1067, 1081 (9th Cir.2009) (quoting Winter, 129 S.Ct. at 375). If the harm to plaintiff is merely monetary, it “will not usually support injunctive relief.” American Trucking, 559 F.3d at 1057. See also California Pharmacists Association v. Maxwell-Jolly, 568 F.3d 847, 851-52 (9th Cir.2009) (“Typically, monetary harm does not constitute irreparable harm.... Economic damages are not traditionally considered irreparable because the injury can later be remedied by a damage award” (emphasis original)). In addition, harm that is “merely speculative” will not support injunctive relief, “although a loss of goodwill and reputation can do so.” American Tracking, 559 F.3d at 1057. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 129 S.Ct. at 376. “In each case, a court must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Amoco Production Co. v. Village of Cambell, Alaska, 480 U.S. 531, 542, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). “The public interest analysis for the issuance of a preliminary injunction requires [the court] to consider ‘whether there exists some critical public interest that would be injured by the grant of preliminary relief.’ ” Independent Living Center of Southern California, Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir.2009) (quoting Hybritech Inc. v. Abbott Laboratories, 849 F.2d 1446, 1458 (Fed. Cir.1988)). “When the reach of an injunction is narrow, limited only to the parties, and has no impact on non-parties, the public interest will be ‘at most a neutral factor in the analysis rather than one that favor[s] [granting or] denying the preliminary injunction.’ ” Stormans, 586 F.3d at 1138-39 (quoting Bernhardt v. L.A. County, 339 F.3d 920, 931 (9th Cir.2003)). “If, however, the impact of an injunction reaches beyond the parties, carrying with it a potential for public consequences, the public interest will be relevant to whether the district court grants the preliminary injunction.” Id. (citing Sammartano v. First Judicial District Court, 303 F.3d 959, 965 (9th Cir.2002)). See also Sierra Forest Legacy, 577 F.3d at 1022 (“When deciding whether to issue a narrowly tailored injunction, district courts must assess the harms pertaining to injunctive relief in the context of that narrow injunction”). “[When] an injunction is asked which will adversely affect a public interest ... the court may in the public interest withhold relief until a final determination of the rights of the parties, though the postponement may be burdensome to the plaintiff.” Weinberger, 456 U.S. at 312-13, 102 S.Ct. 1798. “The plaintiffs bear the initial burden of showing that [issuance of an] injunction is in the public interest.” Stormans, 586 F.3d at 1139 (citing Winter, 129 S.Ct. at 378). The district court, however, “need not consider public consequences that are ‘highly speculative.’ ” Id. (quoting Golden Gate Restaurant Association v. City & County of San Francisco, 512 F.3d 1112, 1126 (9th Cir.2008)). “In other words, the court should weigh the public interest in light of the likely consequences of the injunction. Such consequences must not be too remote, insubstantial, or speculative and must be supported by evidence.” Id. “The likelihood of confusion to consumers is [a] critical factor in our consideration” of harm to the public, as “[t]he public has an interest in avoiding confusion between two companies’ products.” Internet Specialties West, Inc. v. Milon-DiGiorgio Enterprises, Inc., 559 F.3d 985, 995 n. 5 (9th Cir.2009). B. Aurora’s Likelihood of Success on the Merits of Its Copyright Infringement Claim Aurora seeks a preliminary injunction under the Copyright Act prohibiting Ty from infringing its copyrights in various YooHoo & Friends characters by marketing and selling Beanie Boos. To prevail on a copyright infringement claim, a plaintiff must show (1) ownership of a valid copyright and (2) copying of the original elements of the protected work. See Feist Publications v. Rural Telephone Service Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (“To establish infringement, two elements must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original”). “The word ‘copying’ is shorthand for the infringing of any of the copyright owner’s ... exclusive rights, described [in section 106 of the Copyright Act].” S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1085 n. 3 (9th Cir.1989). 1. Aurora’s Ownership of a Valid Copyright a. The Bush Babies, Fennec, Lemur, Capuchin, and Squirrel Plush Toys The first element Aurora must prove to prevail on its copyright infringement claim is ownership of a valid copyright in the YooHoo & Friends plush toys. See Feist, 499 U.S. at 361, 111 S.Ct. 1282. Aurora has proffered Certificates of Copyright Registration for the YooHoo bush baby plush toy in several formats (Nos. VA1406-420, VA1-628-222, VA1-631-368, VA1-640-398, and VA1-640-401). Additionally, it has proffered Certificates of Copyright Registration for the lemur plush toy with sound (VA1-640-404), the fennec plush toy with sound (VA1-664-220), the capuchin plush toy with sound (VA1-664194), and the squirrel plush toy with sound (VA1-664-195). Finally, Aurora has proffered a Certificate of Copyright Registration for the YooHoo Too display box (VA1664-217). A copyright registration certificate is prima facie evidence of copyright ownership. See 17 U.S.C. § 410(c) (“In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate”); Syntek Semiconductor Co., Ltd. v. Microchip Technology Inc., 307 F.3d 775, 781 (9th Cir.2002) (stating that a copyright “registration is considered prima facie evidence of the validity of the copyright”). “A certificate of copyright registration, therefore, shifts to the defendant the burden to prove the invalidity of the plaintiffs copyrights.” Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1076 (9th Cir.2000). Ty does not challenge the validity of Aurora’s registered copyrights. Because there is no contrary evidence in the record, the court finds that Aurora has shown it will likely prove it is the owner of a valid copyright in the bush baby plush toy in several formats, the lemur plush toy with sound, the fennec plush toy with sound, the capuchin plush toy with sound, the squirrel plush toy with sound and the YooHoo Too display box. b. The Koala Plush Toy Aurora has not proffered a filed application for copyright registration or registration certificate for its koala toy. Consequently, the court lacks jurisdiction to consider a copyright claim concerning the toy. See 17 U.S.C. § 411(a) (“[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title”). c. The Penguin, Panda, and Sugar Glider Plush Toys Aurora does not contend that it has obtained a copyright on its penguin, panda, and sugar glider toys; rather, it asserts that it has applied for copyright registration respecting the toys. The Ninth Circuit has not yet addressed the proper interpretation of § 411(a), and there is a split of authority as to whether a copyright must actually have been registered before jurisdiction attaches under § 411(a). Compare La Resolana Architects, PA v. Clay Realtors Angel Fire, 416 F.3d 1195, 1204 (10th Cir.2005) (“[W]e reject the proposition that § 411 confers federal court jurisdiction for an infringement action upon mere submission of a copyright application to the Copyright Office. In our view, the statute requires more: actual registration by the Register of Copyrights. Until that happens, an infringement action will not lie in the federal courts”); Strategy Source, Inc. v. Lee, 233 F.Supp.2d 1, 3 (D.D.C.2002) (“[T]his Court concludes that the position adopted by the Eleventh Circuit and several district courts is the approach mandated by section 411(a). The Court is in agreement with those courts that have found that permitting an infringement lawsuit to go forward in the absence of a registration certificate or denial of the same is in tension with the language of section 411(a) of the Copyright Act”); Brush Creek Media, Inc. v. Boujaklian, No. C-02-3491 EDL, 2002 WL 1906620, *3-4 (N.D.Cal. Aug. 19, 2002) (“[T]he plain language of the [Copyright] statute precludes institution of an infringement action while a copyright application is merely pending, even though the Court ... [believes] that this result is inefficient”); Harvard, Apparatus, Inc. v. Cowen, 130 F.Supp.2d 161, 164 (D.Mass. 2001) (“With respect to ... copyright infringement ... registration is a prerequisite to suit ... ”); Kregos v. Associated Press, 795 F.Supp. 1325, 1331 (S.D.N.Y. 1992) (“Before commencement of an action for copyright infringement, a person must register a copyright claim with the Copyright Office____ Indeed, ‘[r]eceipt of an actual Certificate of Registration or denial of [the] same is a jurisdictional requirement’” (citations omitted)) with Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 365 (5th Cir.2004) (“Although some circuits require that a plaintiff actually obtain a certificate from the Copyright Office before bringing suit, the Fifth Circuit requires only that the Copyright Office actually receive the application, deposit, and fee before a plaintiff files an infringement action,” citing Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir.1991)); Apple Barrel Productions, Inc. v. Beard, 730 F.2d 384, 386 (5th Cir.1984) (“In order to bring suit for copyright infringement, it is not necessary to prove possession of a registration certificate. One need only prove payment of the required fee, deposit of the work in question, and receipt by the Copyright Office of a registration application”); International Kitchen Exhaust Cleaning Association v. Power Washers of North America, 81 F.Supp.2d 70, 72 (D.D.C.2000) (“To best effectuate the interests of justice and promote judicial economy, the court endorses the position that a plaintiff may sue once the Copyright Office receives the plaintiffs application, work, and filing fee”); Dielsi v. Falk, 916 F.Supp. 985, 994 n. 6 (C.D.Cal. 1996) (“Plaintiff can satisfy the § 411(a) requirement by merely filing an application for registration with the Copyright Office. Once the Copyright Office receives Plaintiffs application, he can bring a claim for copyright infringement. The receipt of Plaintiffs application satisfies § 411(a)’s jurisdictional requirement, whether or not the application is granted or denied, and whether or not the application precedes or follows the alleged infringement” (emphasis original; citations omitted)); Havens v. Time Warner, Inc., 896 F.Supp. 141, 142-43 (S.D.N.Y.1995) (“In order to bring suit for copyright infringement, it is not necessary to prove possession of a registration certificate,” citing Apple Barrel, 730 F.2d at 386); see generally Loree Rodkin Management Corp. v. Ross-Simons, Inc., 315 F.Supp.2d 1053, 1054 (C.D.Cal.2004) (noting the “rather clear split in authority on the matter, including a decisive split between various California district courts” and the lack of Ninth Circuit authority). Although some courts in this district have followed cases holding that a registration certificate is a prerequisite to suit, see, e.g., Loree Rodkin, 315 F.Supp.2d at 1055, Ty cites this court’s recent decision in Breakdown Services, Ltd. v. My Entertainment World, Inc., No. CV 08-5702 MMM (CWx), 2009 WL 3045807 (C.D.Cal. Sept. 18, 2009), wherein the court held that “a plaintiff can satisfy the registration requirement by showing that the Copyright Office received its application, fee, and deposit of the work in question prior to the date suit was filed.” Id. at *1. See also Gable-Leigh, Inc. v. North American Miss, No. CV 01-01019 MMM, 2001 WL 521695, *4 (C.D.Cal. Apr. 13, 2001). Ty notes that the copyright applications Aurora has submitted for the panda, penguin, and sugar glider plush toys omit the second page, are not dated or signed, omit critical information such as the “author” of the work, and do not include a stamp indicating that the applications and accompanying fee and depository materials were received by the Copyright Office before Aurora filed its complaint. “No court has held that a plaintiff can satisfy § 411(a) simply by placing the registration application, fee and deposit in the mail prior to filing suit, and the statute requires receipt of all three items, not simply the application itself, by the Copyright Office before suit is initiated.” Breakdown, 2009 WL 8045807 at *2. Aurora’s exhibits do not demonstrate that the registration application, fee, and deposit were completed and mailed to the Copyright Office, much less that they were received. Consequently, the court concludes that it lacks jurisdiction to hear copyright claims based on the panda, penguin, and sugar glider plush toys. 2. Extraterritorial Application of the Copyright Act Although the court has found that it has jurisdiction to consider copyright infringement claims regarding Aurora’s bush babies, fennec, lemur, capuchin, and squirrel plush toys, plaintiffs complaint contains no allegations respecting the fennec, capuchin, and squirrel plush toys and does not plead that Ty is infringing its copyrights in these designs by selling a substantially similar animal-based toy. Indeed, the primary focus of Aurora’s argument appears to be that Ty’s Cleo and Bubblegum Beanie Boos are similar to the YooHoo & Friends lemur and bush baby plush toys. As noted, Ty asserts that it sells the Cleo and Bubblegum plush toys only in Europe and Canada; that they are not currently included on any order form Ty uses in the United States; that they are not currently depicted on Ty’s website; and that Ty has no intention of offering Cleo and Bubblegum for sale in the United States pending final resolution of this lawsuit. The question, therefore, is whether, as a matter of law, Ty infringes plaintiffs U.S. copyrights by selling a similar plush toy product outside the United States. “It is a long-standing principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’ ” EEOC v. Arabian American Oil Co. (Aramco), 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (quoting Foley Brothers, Inc. v. Filardo, 336 U.S. 281, 285, 69 S.Ct. 575, 93 L.Ed. 680 (1949)). Because courts must “assume that Congress legislates against the backdrop of the presumption against extraterritoriality,” unless “there is ‘the affirmative intention of the Congress clearly expressed,’ ” congressional enactments must be presumed to be “ ‘primarily concerned with domestic conditions.’ ” Id. at 248, 111 S.Ct. 1227 (quoting Foley Brothers, 336 U.S. at 285, 69 S.Ct. 575, and Benz v. Companía Naviera Hidalgo, S.A., 353 U.S. 138, 147, 77 S.Ct. 699, 1 L.Ed.2d 709 (1957)). “The ‘undisputed axiom[ ]’ ... that the United States’ copyright laws have no application to extraterritorial infringement predates the 1909 Act.” Subafilms, Ltd. v. MGM-Pathe Communications Co., 24 F.3d 1088, 1095 (9th Cir.1994) (en banc) (quoting 3 Melville B. Nimmer and David Nimmer, Nimmer on Copyright, § 12.04[A][3][b], at p. 12-86 (1991)). Sitting en banc, the Ninth Circuit found no “no clear expression of congressional intent in either the 1976 Act or other relevant enactments to alter the preexisting extraterritoriality doctrine.” Id. at 1096. Noting “the continuing application of the principle that ‘infringing actions that take place entirely outside the United States are not actionable in United States federal courts,’ ” it observed that “[h]ad Congress been inclined to overturn the preexisting doctrine that infringing acts that take place wholly outside the United States are not actionable under the Copyright Act, it knew how to do so,” id. (quoting Peter Starr Production Co. v. Twin Continental Films, Inc., 783 F.2d 1440, 1442 (9th Cir.1986)). Animated by this consideration and concerned with international comity, the en banc court concluded that the Copyright Act does not extend “to acts of infringement that occur entirely overseas.” Id. at 1097. The Ninth Circuit has spoken clearly on the extraterritorial application of the Copyright Act. As Aurora has adduced no evidence of domestic infringement of its copyrights by Ty with respect to the Cleo and Bubblegum plush toys, and as Ty represents that it has not and will not market Cleo and Bubblegum in the United States during the pendency of this litigation, the court declines to consider these two toys in evaluating Aurora’s likelihood of success on the merits of its copyright infringement claim. 3. Access and Substantial Similarity Between Aurora’s Registered Yoo-Hoo & Friends Plush Toys and Ty’s U.S.-Distributed Beanie Boos To succeed on its copyright claim, Aurora must demonstrate that Ty “copied” its copyrighted designs. Because direct evidence of copying is generally not available, a plaintiff can establish copying by showing that defendant had access to the copyrighted work and that the parties’ works are substantially similar. See Smith v. Jackson, 84 F.3d 1213, 1218 (9th Cir.1996) (“To establish a successful copyright infringement claim, a plaintiff must show that (1) she owns the copyright, and (2) defendant copied protected elements of the copyrighted work”); Kouf v. Walt Disney Pictures & Television, 16 F.3d 1042, 1044 n. 2 (9th Cir.1994); Berkla v. Corel Corp., 66 F.Supp.2d 1129, 1140 (E.D.Cal. 1999). Aurora’s reply clarifies that its copyright claim is based on Ty’s Cleo, Bubblegum, Bamboo, and Waddles plush toys. As noted, the court declines to consider the Cleo and Bubblegum toys, as any finding of infringement based on these toys would amount to extraterritorial application of the Copyright Act. The court therefore examines whether Aurora will likely be able to show that Ty had access to Aurora’s bush baby, lemur, fennec, capuchin, and squirrel plush toys and that Ty’s panda and penguin plush toys are substantially similar to one or more of those toys. Access is established if “plaintiff shows that the defendant had an opportunity to view or to copy the plaintiffs work.” Meta-Film Associates v. MCA 586 F.Supp. 1346, 1355 (C.D.Cal.1984) (citation omitted). “Circumstantial evidence of reasonable access is proven in one of two ways: (1) a particular chain of events is established between the plaintiffs work and the defendant’s access to that work (such as through dealings with a publisher or record company), or (2) the plaintiffs work has been widely disseminated.” Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir.2000). Aurora relies on the second method; it proffers declarations stating that YooHoo plush toys have been widely available in the United States since 2006. Indeed, Aurora has presented substantial evidence that YooHoo & Friends plush toys have been available globally. Ty does not dispute that it had access to them. Having shown that it will likely be able to prove access, Aurora must next show that it will likely demonstrate that the penguin and panda Beanie Boos Ty distributes in the United States are substantially similar to Aurora’s copyrighted YooHoo & Friends plush toys. To determine whether works are substantially similar, the Ninth Circuit uses both an extrinsic and an intrinsic test. The extrinsic test objectively considers whether there are substantial similarity in both ideas and expression, while the intrinsic test measures expression subjectively from the standpoint of the ordinary reasonable observer. See Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435, 1442 (9th Cir.1994) (“The intrinsic prong was a test for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance”); see also Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 637 (9th Cir.2008) (noting that the extrinsic test has evolved, and stating: “[T]he extrinsic prong was a test for similarity of ideas based on external criteria; analytic dissection and expert testimony could be used, if helpful. The intrinsic prong was a test for similarity of expression from the standpoint of the ordinary reasonable observer, with no expert assistance.... As it has evolved, however, the extrinsic test now objectively considers whether there are substantial similarities in both ideas and expression, whereas the intrinsic test continues to measure expression subjectively,” quoting Apple Computer, 35 F.3d at 1442); Cavalier v. Random House, Inc., 297 F.3d 815, 822 (9th Cir.2002) (“The ‘extrinsic test’ is an objective comparison of specific expressive elements.... The ‘intrinsic test’ is a subjective comparison ...”). Analytical dissection of a work and expert testimony can be useful in conducting the extrinsic test. Swirsky v. Carey, 376 F.3d 841 (9th Cir.2004) (“The extrinsic test requires ‘analytical dissection of a work and expert testimony,’ ” quoting Three Boys Music Corp., 212 F.3d at 485); Apple Computer, 35 F.3d at 1442 (“As originally adopted in Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977), the extrinsic prong was a test for similarity of ideas based on external criteria; analytic dissection and expert testimony could be used, if helpful”); Smith, 84 F.3d at 1218. This is because “[e]xtrinsic analysis is objective in nature. ‘[I]t depends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed.’ ” Funky Films, Inc. v. Time Warner Entertainment Co., L.P., 462 F.3d 1072, 1077 (9th Cir.2006) (quoting Krofft, 562 F.2d at 1164). “ ‘Analytical dissection’ requires breaking the works ‘down into their constituent elements, and comparing those elements for proof of copying as measured by “substantial similarity.” ’ ” Swirsky, 376 F.3d at 845 (quoting Rice v. Fox Broadcasting Co., 148 F.Supp.2d 1029, 1051 (C.D.Cal.2001)). “Because the requirement is one of substantial similarity to protected elements of the copyrighted work, it is essential to distinguish between the protected and unprotected material in a plaintiffs work.” Id. “The ‘intrinsic test’ is a subjective comparison that focuses on ‘whether the ordinary, reasonable audience’ would find the works substantially similar in the ‘total concept and feel of the works.’ ” Cavalier, 297 F.3d at 822 (quoting Kouf, 16 F.3d at 1045). See also Swirsky, 376 F.3d at 847 (noting that the intrinsic test measures “whether subjectively the ‘ordinary, reasonable person would find the total concept and feel of the [two works] to be substantially similar,’ ” quoting Three Boys Music Corp., 212 F.3d at 485); Aliotti v. R. Dakin & Co., 831 F.2d 898, 901 (9th Cir.1987) (applying the “total concept and feel” test to a comparison of stuffed dinosaur toys). In Apple Computer, the Ninth Circuit set forth the steps a court must take to evaluate substantial similarity: “(1) The plaintiff must identify the source(s) of the alleged similarity between his work and the defendant’s work. (2) Using analytic dissection, and, if necessary, expert testimony, the court must determine whether any of the allegedly similar features are protected by copyright .... [UJnprotectable ideas must be separated from potentially protectable expression; to that expression, the court must then apply the relevant limiting doctrines in the context of the particular medium involved, through the eyes of the ordinary consumer of that product. (3) Having dissected the alleged similarities and considered the range of possible expression, the court must define the scope of the plaintiffs copyright — that is, decide whether the work is entitled to ‘broad’ or ‘thin’ protection. Depending on the degree of protection, the court must set the appropriate standard for a subjective comparison of the works to determine whether, as a whole, they are sufficiently similar to support a finding of illicit copying.” Apple Computer, 35 F.3d at 1443 (emphasis original). Because Aurora’s copyright claim is limited to Ty’s panda and penguin, — and because the court’s conclusion Aurora’s copyright registrations and applications allows it to consider only Aurora’s bush baby, squirrel, fennec, capuchin, and lemur toys in evaluating the claim — the first step in evaluating whether Aurora will succeed on the merits of its copyright claim is to examine whether Aurora has “identified the sources of alleged similarity [between the toys] by submitting a list of particular features in its works which are similar” to features in the allegedly infringing works. Id. at 1443. Aurora identifies the sources of similarities as the “distinctive and fanciful large eye styling, coloration, and stitching designs.” The next step under Apple Computer, therefore, is to examine “whether any of the allegedly similar features are protected by copyright.” Id. There are several concepts that limit the amount of copyright protection to which a work is entitled. These include the merger doctrine; the constraints of the medium that limit expressive options; and originality. Id. at 1444-45. Before turning to the sources of similarity Aurora has identified, it is useful to note that no copyright protection can be afforded the idea of producing plush toys that resemble particular animals. See, e.g., Satava v. Lowry, 323 F.3d 805, 810 (9th Cir.2003) (holding that plaintiff could “not prevent others from copying aspects of his [jellyfish] sculptures resulting from ... jellyfish physiology”); Aliotti, 831 F.2d at 901 (“No copyright protection may be afforded to the idea of producing stuffed dinosaur toys or to elements of expression that necessarily follow from the idea of such dolls.... Appellants therefore may place no reliance upon any similarity in expression resulting from either the physiognomy of dinosaurs or from the nature of stuffed animals”). Thus, Aurora cannot claim infringement based on the fact that Ty manufactures and sells a plush toy that resembles an animal in the Yoo-Hoo & Friends line. The first source of similarity that Aurora has identified is the coloration of its and Ty’s toys. Aurora’s bush baby plush toys are off-white, with gray faces, and have multi-colored (pink, orange, purple, or blue) striped tails. Aurora’s squirrel toy is bright red and white. Aurora’s fennec toy is light pink and white. Only Aurora’s capuchin and lemur plush toys have natural coloration — the lemur is gray and white while the capuchin is dark and light brown. Because the coloration of the bush baby, squirrel and fennec toys is fanciful, it is entitled to some protection. It is less clear that the coloration of the capuchin and lemur toys is a protectable element, given that it resembles the animals as they are found in nature. The second source of similarity Aurora identified is the stitching design on its toys. It is difficult to conduct an extrinsic analysis of the element of the toys, as neither Aurora’s motion nor the declarations it submitted defined the term. For the first time in its reply, Aurora argued that it intended to reference the stitching design of the mouth of its panda. Because the stitching on the mouth appears to differ from anything found on a natural animal, it is potentially protectable. The court notes, however, that stitching is an essential element of any stuffed animal; the constraints of the medium therefore limit expressive options to some extent and the protection that can be afforded the stitching design of the panda’s mouth is thin. Apple Computer, 35 F.3d at 1444 (“when similar features in a videogame are ‘ “as a practical matter indispensable, or at least standard, in the treatment of a given [idea],” ’ they are treated like ideas and are therefore not protected by copyright”). Finally, Aurora identifies the large eyes on its toys as a source of similarity. In Alchemy II, Inc. v. Yes! Entertainment Corp., 844 F.Supp. 560 (C.D.Cal.1994), the court considered whether the shape of a teddy bear’s head was protectable: “First, although the shape is somewhat distinctive, it is not unique. There are only a limited number of head shapes a teddy bear could have: round, oval, wider on the bottom than on the top (pear shaped), or wider on the top than on the bottom. Thus, this shape probably is not protectable.” Id. at 568. In like fashion, there are only a limited number of sizes for the eyes of a stuffed animal — they can be big, small, or medium-sized. It is questionable, therefore, that the large eyes of the YooHoo toys are protectable. Additionally, as Ty correctly notes, “protection extends only to those components of a work that are original to the author.” Apple Computer, 35 F.3d at 1445. Thus, to the extent aspects of Aurora’s animals were not original, but found in prior stuffed animals, they cannot be considered protectable elements. Ty has proffered a number of plush toys that predate Aurora’s YooHoo & Friends that also have large eyes. Russ Berrie’s “Lil Peepers” line of big-eyed plush toys, which was marketed as early as 1994, appears to incorporate a style of large eyes that is similar to Aurora’s YooHoo line. A number of the plush toys in Petting Zoo’s “Bright Eyes” line also have large eyes similar to the YooHoos. the “Bright Eyes” line was sold in 2006, when Aurora’s YooHoo & Friends was still in development. Given these similarities, it appears unlikely that Aurora will be able to establish that the large eyes of its YooHoo toys are protectable. At best, therefore, Aurora’s evidence suggests that it will be able to establish that it is entitled to only thin copyright protection for its YooHoo & Friends toys. As a result, “the appropriate standard [on which to evaluate whether there has been] illicit copying is virtual identity.” Apple Computer, 35 F.3d at 1439, 1442. Employing this standard, Aurora has not shown that it will likely succeed on the merits of its copyright infringement claim. Viewed as a whole, neither Ty’s panda nor its penguin is virtually identical to any of Aurora’s bush baby, squirrel, fennec, capuchin, or lemur toys. See id. at 1446 (“This does not mean that at the end of the day, when the works are considered under the intrinsic test, they should not be compared as a whole”). This is particularly when one filters out the unprotectable elements of expression. By way of example, Ty’s panda is black and white, with green inside the ears and green eyes. Ty’s penguin is black and white, with blue eyes, and blue under the wings and on the feet. These colors nowhere appear on Aurora’s bush baby, squirrel, fennec, capuchin, or lemur toys. Similarly, there are striking differences between the mouths and expressions of Aurora’s panda and Ty’s panda. Ty’s panda has a distinct and visible smiling mouth, making the panda appear happy. The mouth of Aurora’s panda is largely obscured behind heavy fur; together with the shape of the eyes, this makes the panda appear sad. While there are some similarities between the eyes of Aurora’s and Ty’s toys, there are also significant differences in terms of the colors used on the outer edges of the eyes, the size of the eyes and the way the eyes are set on the head of the animal. To the extent there are similarities in the eyes, moreover, this element is not likely protectable, requiring that such similarities be filtered out. Id. In sum, based on the record presently before the court, it appears that Aurora’s YooHoo & Friends bush baby, squirrel, fennec, capuchin, or lemur toys are entitled, at best, to thin copyright protection. Ty’s panda and penguin Beanie Boos are not virtually identical. Indeed, they are not even substantially similar. Aurora has not demonstrated, therefore, that it is likely to prevail on the merits of its copyright claim. 4. Infringement of Aurora’s Right to Display At oral argument, Aurora argued that Ty had infringed its right to display the bush baby and lemur plush toys by including Cleo and Bubblegum on sales sheets, although not on the accompanying order forms, and by including cartoon caricatures resembling Cleo and Bubblegum on an unspecified number of display racks in retail stores. Under 17 U.S.C. § 106, a copyright owner has an exclusive right, “in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.” 17 U.S.C. § 106(5). “Display” means “to show a copy of [the copyrighted work], either directly or by means of a film, slide, television image, or any other device or process.17 U.S.C. § 101. Section 101 defines “copies” as “material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Id. “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” Id. To “display a work ‘publicly’ means”: “(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” 17 U.S.C. § 101. Aurora has adduced no evidence that the sale sheet sent to retailers was displayed at a place “open to the public” or at any place where a “substantial number of persons ... gathered.” Consequently, it appears unlikely that Aurora would be able to prevail a claim that Ty infringed its right to display by including Cleo and Bubblegum on the document. Ty’s display racks, by contrast, are meant to be used in retail stores open to the public. As respects the cartoon caricatures of Cleo and Bubblegum on the display rack, however, Aurora has not demonstrated, or even attempted to argue, that it will be able to prove virtual identity or substantial similarity between the copyrighted work and the caricatures on the display racks. Aurora’s description of the display rack, in fact, is internally contradictory. Aurora describes the display rack in only two places in its reply, stating first that the rack “prominently displays Cleo and Bubblegum” and then asserting that at least one of the cartoons on the rack represents a plush toy that “Ty itself does not even make.” As Aurora has not identified the sources of similarity between its YooHoo & Friends toys and the characters depicted on Ty’s display rack, the court will utilize the three sources of similarity identified in connection with the toys themselves — coloration, stitching design, and eye styling. Aurora has not shown that it will likely succeed on the merits of its copyright infringement claim with respect to the two cartoon caricatures depicted on the display rack. Viewed as a whole, neither is virtually identical, nor even substantially similar, to any of Aurora’s bush baby, squirrel, fennec, capuchin, or lemur toys. See id. at 1446 (“This does not mean that at the end of the day, when the works are considered under the intrinsic test, they should not be compared as a whole”). This is particularly true when one filters out the unprotectable elements of expression. By way of example, the cartoon caricature on the right is magenta and white, -with light pink hands, inner ears, and eyes. The cartoon caricature on the left is off-white, with gray coloring around the eyes, gray hands, gray and blue ears, a gray and yellow tail, and blue eyes. This configuration of colors nowhere appears on Aurora’s bush baby, squirrel, fennec, capuchin, or lemur toys. Similarly, there are striking differenees between the mouths and expressions of Aurora’s toys and the cartoon Beanie Boos on the display rack, as the caricatures do not have mouths. While there are some similarities between the eyes of the cartoon caricatures and Aurora’s toys, there are also significant differences in terms of the colors used on the outer edges of the eyes and the size and orientation of the pupils; the pupils in the cartoon caricatures are much smaller in relation to the entire eye than is the case on Aurora’s toys; they appear, moreover, to be directed downward. To the extent there are similarities in the eyes, moreover, this element is not likely protectable, requiring that such similarities be filtered out. Id. In sum, the caricatures on Ty’s display racks are neither virtually identical nor substantially similar to Aurora’s plush toys. Aurora has not demonstrated, therefore, that it is likely to prevail on the merits of its claim that Ty infringed its right to display by sending display racks and/or the sales sheets to retailers. C. Aurora’s Likelihood of Success on the Merits on the Lanham Act Claim Trademarks represent “a limited property right in a particular word, phrase, or symbol.” New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 306 (9th Cir.1992). To prevail on its trademark infringement claim, plaintiff must prove “(1) that it has a protective ownership interest in [a] mark; and (2) that the defendant’s use of the mark is likely to cause consumer confusion, thereby infringing upon the [plaintiffs] rights to the mark.” Department of Parks & Recreation v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1124 (9th Cir.2006) (citing Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1354 (9th Cir.1985) (en banc)). Trade dress, including the design of a product, can be protectable under the Lanham Act. Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205, 216, 120 S.Ct. 1339, 146 L.Ed.2d 182 (2000) (“We hold that, in an action for infringement of unregistered trade dress under § 43(a) of the Lanham Act, a product’s design is distinctive, and therefore protective, only upon a showing of secondary meaning”). “Trade dress refers to the overall appearance of the product design, rather than its mechanics or a specific logo.” Global Manufacturing Group, LLC v. Gadget Universe.Com, 417 F.Supp.2d 1161, 1164 (S.D.Cal.2006) (citing Wal-Mart, 529 U.S. at 209-10, 120 S.Ct. 1339). See also Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769-70, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992) (“‘The “trade dress” of a product is essentially its total image and overall appearance,”’ quoting Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 1256 (5th Cir.1989)). “It ‘involves the total image of a product and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques.’ ” Id. (quoting John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir.1983)). See also Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252 1257 (9th Cir.2001) (“Trade dress refers generally to the total image, design, and appearance of a product and ‘may include features such as size, shape, color, color combinations, texture or graphics,’ ” quoting International Jensen, 4 F.8d at 822). Global Manufacturing, 417 F.Supp.2d at 1166 (“Trade dress refers to the visual aspects of a product relating to its design or style,” citing Leatherman Tool Group, Inc. v. Cooper Industries, Inc., 199 F.3d 1009, 1011 n. 3 (9th Cir.1999)). “Trade dress protection is broader in scope than trademark protection, both because it protects aspects of packaging and product design that cannot be registered for trademark protection and because evaluation of trade dress infringement claims requires the court to focus on the plaintiffs entire selling image, rather than the narrower single facet of trademark.” Vision Sports, 888 F.2d at 613. “[T]rade dress may be protected if it is nonfunctional and has acquired secondary meaning and if its imitation creates a likelihood of consumer confusion.” Fuddruckers, Inc. v. Doc’s B.R. Others, Inc., 826 F.2d 837, 842 (9th Cir.1987). “To prove trade dress infringement, a plaintiff must demonstrate that (1) the trade dress is nonfunctional, (2) the trade dress has acquired secondary meaning, and (3) there is a substantial likelihood of confusion between the plaintiffs and defendant’s products.” Art Attacks Ink, LLC v. MGA Entertainment Inc., 581 F.3d 1138, 1145 (9th Cir.2009). Where, as here, the trade dress for which protection is sought is the design of the product itself, plaintiff “bears the burden of establishing first, that the features sought to be protected are not functional, but were selected arbitrarily or for purely aesthetic reasons; second, that the design has acquired a distinctive meaning such that consumers identify the trade dress with the source of the product rather than the product itself; and third, that the infringing product is likely to cause confusion as to its origin.” Global Manufacturing, 417 F.Supp.2d at 1167 (citing WalMart, 529 U.S. at 210, 120 S.Ct. 1339) (emphasis original). When trade dress rights are asserted in a product design, “courts should err on the side of caution” because “product design almost invariably serves purposes other than source identification.” Wal-Mart, 529 U.S. at 213, 120 S.Ct. 1339. 1. Extraterritorial Reach of the Lanham Act In its reply, Aurora argues for the first time that a Lanham Act injunction should be entered that applies internationally. Before it is appropriate to apply the Lanham Act extraterritorially, “first, there must be some effect on American foreign commerce; second, the effect must be sufficiently great to present a cognizable injury to plaintiffs under the federal statute; and third, the interests of and links to American foreign commerce must be sufficiently strong in relation to those of other nations to justify an assertion of extraterritorial authority.” Reebok International, Ltd. v. Marnatech Enterprises, Inc., 970 F.2d 552, 554 (9th Cir.1992) (quoting Star-Kist Foods, Inc. v. P.J. Rhodes & Co., 769 F.2d 1393, 1395 (9th Cir.1985)). a. Effect on American Foreign Commerce To establish that it is appropriate to apply the Lanham Act extraterritorially, Aurora must first show that there is “some effect on American foreign commerce.” Reebok, 970 F.2d at 554 (“The sales of infringing goods in a foreign country may have a sufficient effect on commerce to invoke Lanham Act jurisdiction,” quoting Ocean Garden, Inc. v. Marktrade Co., Inc., 953 F.2d 500, 503 (9th Cir.1991)). In addition, Aurora must demonstrate that the effect is “sufficiently great to present a cognizable injury.” Id. The facts of Reebok are relevant in understanding the extent of the injury necessary to extend the reach of the statute extraterritorially. There, defendant organized and directed the manufacture of counterfeit shoes in Mexico, knowing that the shoes would enter U.S. commerce with regular frequency. The evidence showed that sales of the counterfeit shoes in the United States decreased sales of genuine Reebok shoes and decreased the value of Reebok’s consolidated holdings. The court concluded that defendant’s activities “thus affect[ed] American foreign commerce in a manner which eause[d] injury to [plaintiff] cognizable under the Lanham Act.” Reebok, 970 F.2d at 554-55. Aurora proffers two pieces of evidence with its reply brief that purportedly support a finding that Ty’s sales of Beanie Boos have had a significant effect on American commerce. First, a marketing analyst in its employ purchased three sets of the “UK edition Beanie Boos,” over the Internet; these included the Cleo and Bubblegum plush toys. Second, a card store in Santa Fe, New Mexico received a brochure that includes pictures of the Cleo and Bubblegum plush toys. There is no indication that an order form that accompanied the brochure offered the toys for sale or that the card store purchased any Cleo or Bubblegum plush toys. Aurora has adduced no evidence that it has lost sales in the United States, however. Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 899 (9th Cir.2002) (holding that sales of an album worldwide had a sufficient effect on American foreign commerce to apply the Lanham Act extraterritorially where plaintiff “suffered monetary injury in the United States from those sales”); Ocean Garden, 953 F.2d at 503 (accepting as evidence that the first and second factors for exercise of extraterritorial jurisdiction were satisfied by proof that plaintiff was losing millions of dollars in the United States, but rejecting as speculative a claim that infringement abroad caused dilution of plaintiffs trademark in the United States); New Name, Inc. v. The Walt Disney Co., No. CV 07-5034 PA (RZx), 2008 WL 5587486, *1 (C.D.Cal. July 25, 2008) (concluding that it was appropriate to apply the Lanham Act extraterritorially based on evidence that a loss of sales occurred following infringement). The present record does not support a finding that Aurora is likely to prove Ty’s sales of Beanie Boos in countries other than the United States has a significant effect on American foreign commerce. A single retailer’s Internet sale of Cleo and Bubblegum plush toys does not show a significant effect on American foreign commerce, particularly when there is no evidence that the retailer is located in the United States, received the toys in the United States, or obtained the toys directly from Ty. Additionally, there is no evidence of actual confusion, as the individual who bought the toys was associated with plaintiff. Cf. Love v. The Mail on Sunday, 473 F.Supp.2d 1052, 1055 (C.D.Cal.2007) (discounting evidence of a single purchase over the Internet website “eBay” of an infringing CD produced in the United Kingdom, where purchaser had an apparent affiliation with plaintiffs counsel). In any event, even were the court to find that this single sale showed that Ty’s foreign sales had some effect on American foreign commerce, it would be unable to conclude, based on one sale, that “the effect was sufficiently large” to satisfy the second factor. Gushi Brothers Co. v. Bank of Guam, 28 F.3d 1535, 1544 n. 13 (9th Cir.1994). Moreover, given that Aurora’s marketing analyst is an employee of the company and not a disinterested consumer, and that she was not confused by any alleged similarities in the products, her purchase of Ty’s Cleo and Bubblegum plush toys does not demonstrate that any United States consumer has been confused by allegedly similarities between the brands. b. Interests of and Links to American Foreign Commerce in Relation to Those of Other Nations The court’s inquiry regarding the third factor requires consideration of seven factors: “[1] The degree of conflict with foreign law or policy, [2] the nationality or allegiance of the parties and the locations or principal places of businesses or corporations, [3] the extent to which enforcement by either state can be expected to achieve compliance, [4] the relative significance of effects on the United States as compared with those elsewhere, [5] the extent to which there is explicit purpose to harm or affect American commerce, [6] the foreseeability of such effect, and [7] the relative importance to the violations charged of conduct within the United States as compared with conduct abroad.” Star-Kist, 769 F.2d at 1395 (quoting Timberlane I, 549 F.2d at 614). The only evidence or argument Aurora proffers regarding any of these factors are allegations in its complaint that it is a California corporation that has its principal place of business in the state, California and that Ty is a Delaware corporation whose principal place of business, on “information and belief,” is in Illinois. To properly evaluate the third Timberlane factor, the court would have to examine whether the trademark laws of the United States, the United Kingdom, Canada, and any other country in which Aurora claims infringement are in conflict or are congruent. It would also have to evaluate the extent to which enforcement actions in the United Kingdom, Canada, or other countries could be expected to achieve compliance. Love, 473 F.Supp.2d at 1057 (finding that at least one aspect of U.K. trademark law “differed] significantly” from U.S. trademark law and that “[g]iven the narrower scope of the English cause of action, the Court should not apply U.S. trademark law because the conduct might have been lawful in the country in which it occurred”). Aurora has presented no evidence or argument regarding any of these subjects. Consequently, the court is unable to evaluate whether extraterritorial application of the Lanham Act in this case might create a conflict with the trademark law of another country. Star-Kist, 769 F.2d at 1396. Another factor bearing on whether enforcement in another country would be more likely to achieve compliance than issuance of an injunction in this action is where “the majority of the allegedly infringing conduct occurred.” Love, 473 F.Supp.2d at 1057 (“The third sub-factor also counsels against application of the Lanham Act; since the majority of the allegedly infringing conduct occurred in the United Kingdom, a court there is better-positioned than this Court to provide effective relief’). It appears that sales of the Cleo and Bubblegum plush toys have overwhelmingly been consummated abroad; Aurora cites only incidental or indirect contact between those plush toys and the United States. With respect to other potentially infringing Beanie Boos, Aurora has presented no evidence detailing the country in which a majority of the infringing sales or offers for sale has been made. The court similarly cannot analyze the relative significance of effects on the United States and elsewhere because Aurora has adduced no evidence regarding the proportion of its sales that is domestic and the proportion that is foreign. If the court knew where a majority of the sales occurred, it would also be in a better position to evaluate which court is “better-positioned ... to provide effective relief.” Love, 473 F.Supp.2d at 1057. As for the next relevant consideration, there is no evidence that Ty had the “explicit purpose to harm [or affect] U.S. commerce.” Id. Aurora likewise has proffered no evidence that harm to American commerce was foreseeable. Since it appears that most of the allegedly infringing conduct occurred overseas, at least as respects the Cleo and Bubblegum plush toys, “the conduct that occu