Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 52 SCHENKIER, United States Magistrate Judge. Introduction As a nation, we long have extolled the virtues of free and vigorous competition, and frequently have cited our devotion to competition as a principal reason for our nation’s unparalleled economic success. At the same time, we hold no less dear the right of individuals and corporations to control and use their own property, including intellectual property such as trademarks. Protection of trademark rights has been a part of our common law since the inception of this nation and has been expressed in federal legislation dating back to 1870. However, the boundaries of these respective rights of competition and protection often are not clear, and often come into conflict. Is one party merely seeking to compete freely and fairly, or is it attempting to unfairly usurp the intellectual property of another? Is one party merely attempting to protect its legitimate right to control and use its intellectual property, or is it seeking to unfairly expand its intellectual property rights beyond their proper scope? Questions such as these typically lie at the core of intellectual property litigation, and this lawsuit is no exception. On July 29, 1996, Planet Hollywood (Region IV), Inc. and Planet Hollywood International, Inc. (collectively, “Planet Hollywood”) initiated this lawsuit against Hollywood Casino Corporation and related corporations and individuals (collectively, “Hollywood Casino”). Hollywood Casino operates casinos in Aurora, Illinois and Tunica, Mississippi, and is in the process of establishing a third casino in Shreveport, Louisiana. As now amended, Planet Hollywood’s complaint alleges that Hollywood Casino is guilty of false designation of origin and trade dress infringement, in violation of the Lanham Act, 15 U.S.C. § 1125 and common law (Count I); has infringed Planet Hollywood’s design marks, in violation of the Lanham Act, 15 U.S.C. § 1114 and the common law (Count II); has violated the Lanham Act, 15 U.S.C. § 1125(c) and the Illinois Anti-Dilution Act, 765 ILCS 1035/15, by diluting the distinctive quality of Planet Hollywood’s design marks (Count III); has committed the common law tort of unfair competition (Count IV); and has violated the Illinois Deceptive Business Practices Act, 815 ILCS 505/1, et seq. (Count V). In addition, Planet Hollywood seeks a declaratory judgment that Planet Hollywood would not infringe any trademark rights of Hollywood Casino were Planet Hollywood to use its design mark for casinos or hotels, an injunction barring defendants from asserting a claim of infringement or unfair competition based on Planet Hollywood’s future use of its design mark for those purposes, and an order canceling all of Hollywood Casino’s registered trademarks for casino services (Count VI). Hollywood Casino has.responded by denying any infringement, asserting an array of affirmative defenses attacking the scope and validity of Planet Hollywood’s trademarks and trade dress, and pleading its own counterclaim for infringement and declaratory relief against Planet Hollywood (and, to boot, joining two senior Planet Hollywood officers as parties to that claim). Hollywood Casino’s counterclaim, as amended, asserts that by placing certain of its restaurants in buildings that also house casino operations run by others, Planet Hollywood already has infringed Hollywood Casino’s trademark and trade name and committed false designation of origin in violation of the Lanham Act, 15 U.S.C. §§ 1114, 1125(a), and 1126 (Counts I and II); has committed common law unfair competition (Count III); has diluted Hollywood Casino’s trademark and trade name in violation of the Lanham Act, 15 U.S.C. § 1125(c), and the Illinois Anti-Dilution Act, 765 ILCS 1035/15 (Count IV); and has violated the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 (Count V) and the Nevada Deceptive Business Trade Practices Act, N.R.S. 598.0915(1)-(3) (Count VIII). Hollywood Casino alleges that Planet Hollywood has unjustly enriched itself by virtue of those alleged violations (Count VI), and pleads a separate count for damages allegedly due and owing for the violations of law alleged in Counts' I through VI in connection with the Planet Hollywood restaurant located at Caesar’s Tahoe in- Stateline, Nevada (Count VII). Hollywood Casino’s amended counterclaim also asserts a declaratory judgment count based on Planet Hollywood’s possible future use of its mark for casino services. Hollywood Casino claims that if Planet Hollywood in fact embarks upon the use of its trademark name for casino services, this would constitute trademark and trade name infringement and dilution of the Hollywood Casino mark in violation of the Lanham Act and applicable state statutes, common law unfair competition, deceptive trade practices in violation of applicable state statutes, and unjust enrichment. As a mirror image to Planet Hollywood’s declaratory judgment claim, Hollywood Casino seeks not only that declaration but, in addition, a declaration that Hollywood Casino’s marks are valid and neither generic nor descriptive, and an injunction barring Planet Hollywood from using its mark in the future for casino services (Count IX). This case originally came before the Court on five summary judgment motions filed by the parties, which raised a number of issues concerning the validity and alleged infringement of Planet Hollywood’s trademark and trade dress, and Hollywood Casino’s trademark. During a pretrial conference on June 1, 1999, the Court denied all summary judgment motions as moot, in view of an agreement by the parties to convert the motions for summary judgment into a bench trial on the papers, pursuant to Federal Rule of Civil Procedure 52 (doc. # 148-1). At the June 1 pretrial conference, the Court also ruled that the trial of this matter would be bifurcated, and the Rule 52 proceeding that is the subject of this opinion would only address issues of liability; that ruling was further confirmed in a subsequent order dated June 7,1999 (doc. # 149-1). The parties agreed that the declarations, documents and other evidentiary materials submitted in connection with the summary judgment motions would constitute the evi-dentiary record for the Court to consider in this Rule 52 proceeding, that the fact statements submitted in connection with the summary judgment motions would be treated as proposed findings of fact, and that the summary judgment briefs would be considered as trial briefs. At the parties’ request, the Court also accepted certain supplementations to that record. Each party submitted additional exhibits, the admissibility of which was ruled on at a pretrial conference held on June 25, 1999 (doc. # 156-1). At Hollywood Casino’s request, and with the agreement of all parties, the Court also conducted site visits of the Hard Rock Café and Planet Hollywood restaurants located in Chicago, Illinois on July 1, 1999, and of the Hollywood Casino located in Aurora, Illinois on July 8, 1999. By agreement of the parties, those site visits were conducted without the presence of counsel or the parties, and without the dates of the visits being disclosed to the employees of the respective facilities. In addition, at the request of Hollywood Casino, the Court convened an evidentiary proceeding for a four-day period from July 19 through 22, 1999, at which time in-court testimony was received from four witnesses called by Hollywood Casino. Planet Hollywood also examined each of the witnesses, but elected to call no witnesses affirmatively. The Court then heard closing argument from each side on July 26, 1999, and allowed the parties to submit additional proposed findings of fact to take into account the full evidentiary record, including what had transpired during the evidentiary hearing. Those findings of fact were submitted on August 17, 1999: Hollywood Casino submitted 403 proposed findings of fact, spanning 79 pages; Planet Hollywood submitted 257 proposed findings of fact, spanning 52 pages (not surprisingly, those proposed findings substantially overlapped with the fact statements previously submitted on summary judgment). During closing argument, the Court raised, sua sponte, the issue of subject matter jurisdiction of the parties’ respective declaratory judgment counts: that is, whether Planet Hollywood has sufficiently progressed with concrete steps to use its name for a casino so as to create a justicia-ble controversy at this time. Planet Hollywood argued that the Court possessed subject matter jurisdiction, and Hollywood Casino did not argue to the contrary. Neither side addressed that issue further in the proposed findings submitted on August 17, 1999. However, after the submission of proposed findings, Hollywood Casino moved to dismiss all declaratory judgment claims in the Amended Complaint and Amended Counterclaim for lack of subject matter jurisdiction (doc. # 179-1). Planet Hollywood opposes the motion, but asserts that if it is granted, attorneys’ fees and costs should be assessed against Hollywood Casino under 28 U.S.C. § 1927 for vexatiously litigating the declaratory judgment issues for several years, and thus saddling Planet Hollywood with unnecessary litigation expenses. Since the filing of these motions, the case has taken a few more twists and turns. First, on October 12, 1999, Planet Hollywood (Region IV) and Planet Hollywood International, Inc. filed petitions in the bankruptcy court in Delaware seeking protection under Chapter 11 of the Bankruptcy Code. Although that filing triggered an automatic stay of all plenary litigation against Planet Hollywood and thus normally would have barred further consideration of the Amended Counterclaim (but not Planet Hollywood’s Amended Complaint) at this time, Planet Hollywood and Hollywood Casino jointly asked the bankruptcy court to lift the stay for purposes of this lawsuit, a request that was granted on November 19, 1999. The pending bankruptcy action, therefore, does not affect this Court’s authority to address the entire case before it. However, the parties have argued about the impact of this bankruptcy filing- — and certain comments attributed to one of the individual plaintiffs about it — on the Court’s consideration as to whether there is a sufficiently concrete case or controversy to vest jurisdiction over the declaratory judgment actions, and the parties have submitted further written argument on that issue. Second, on October 21, 1999, Hollywood Casino filed a motion under Fed.R.Civ.P. 15(b) to further amend its Amended Counterclaim to conform to the evidence (doc. # 181-1). In substance, that motion seeks to excise Counts I-VIII from Hollywood Casino’s Amended Counterclaim — that is, all claims asserting violations based on Planet Hollywood’s past and current uses of its marks. Planet Hollywood resists that motion, and that matter also is presently before the Court. The Court has carefully considered the evidence and arguments submitted by the parties in this Rule 52 proceeding. The Court’s rulings are as follows: 1. Hollywood Casino’s motion to dismiss the declaratory judgment claims for lack of subject matter jurisdiction (doc. # 179-1) is granted. The Court therefore dismisses without prejudice Count VI of the Amended Complaint and Count IX of the Amended Counterclaim. Planet Hollywood’s request for an assessment of fees and costs against Hollywood Casino under 28 U.S.C. § 1927 is denied. 2. Final judgment is hereby entered for defendants, and against plaintiffs, on Counts I through V of the Amended Complaint (which are all remaining claims in the Amended Complaint after dismissal of the declaratory judgment claim in Count VI). 3. Hollywood Casino’s motion to conform the pleadings to the proof by deleting Counts I through VIII of the Amended Counterclaim (doc. # 181-1) is denied. Turning to the merits of those claims, final judgment is hereby entered for the counterdefendants, and against the counterplaintiffs, on Counts I through VIII of the Amended Counterclaim (which are all the remaining claims in the Amended Counterclaim after dismissal of the declaratory judgment claim in Count IX). Set forth below are the findings of fact and conclusions of law that form the basis for the Court’s rulings, as required by Rule 52(a). To the extent that any finding of fact constitutes a conclusion of law, the Court hereby adopts it as such, and to the extent that any conclusion of law constitutes in whole or in part a finding of fact, the Court adopts it as such. See Miller v. Fenton, 474 U.S. 104, 113-14, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (discussing the methodology for distinguishing questions of fact from questions of law). The various subheadings that appear throughout this opinion are not themselves findings or conclusions, but are merely inserted for the convenience of the reader. FINDINGS OF FACT I. THE GENESIS OF THE PLANET HOLLYWOOD CONCEPT. 1. Plaintiffi’Counterdefendant Planet Hollywood (Region IV), Inc. (“PH-Region IV”) is a Minnesota corporation, with its principal place of business in Orlando, Florida. PH-Region IV currently owns the rights in the alleged “Planet Hollywood” trademarks and trade dress that are the subject matter of the Amended Complaint. Plaintif/Counterdefendant Planet Hollywood International, Inc. (“PHI”), a Delaware corporation with its principal place of business in Orlando, Florida, is the parent of PH-Region IV. 2. Counterdefendant Keith Barish is a former Chairman of the Board and principal shareholder of PHI. In late 1988 or 1989, Mr. Barish began to develop the concept of a restaurant that would pay tribute to Hollywood by featuring memorabilia, merchandise and movie footage. The initial name that Mr. Barish considered for this concept was “Café Hollywood.” 3. Counterdefendant Robert Earl is the Chief Executive Officer of PHI, a member of its Board of Directors, and one of its principal shareholders. He is also the Chief Executive Officer of PH-Region IV. Mr. Earl’s responsibilities have involved the day-to-day management of the Planet Hollywood operations. By contrast, Mr. Barish’s responsibility has principally been to preside at PHI’s board meetings; he has not been involved in day-to-day operations (Id.). 4. Mr. Earl first met with Mr. Barish concerning the then “Café Hollywood” concept in about 1989. Beginning early in the development of this concept, Messrs. Barish and Earl envisioned the enterprise as not being limited solely to restaurants, but as potentially expanding into a variety of entertainment and leisure services. The Court finds credible the testimony of Mr. Earl that the decision to change the name of the concept from “Café Hollywood” to “Planet Hollywood” reflected that intent to apply the concept to a variety of entertainment functions (Trial Tr. 799-801). 5. The first Planet Hollywood restaurant opened in New York City, New York, on or about October 21, 1991. As of August 1998, there were eighty-eight Planet Hollywood restaurants located in thirty-five countries on virtually every continent. Thirty-three of those restaurants were located in the United States. Four of the restaurants in the United States are located in hotels which also house separate casino operations: Harrah’s Casino Hotel in Reno, Nevada; Caesar’s Palace Resort in Las Vegas, Nevada; and Caesar’s Casino Hotels in Lake Tahoe, Nevada, and Atlantic City, New Jersey. 6. In addition, Planet Hollywood has offered a number of goods and services under the Planet Hollywood trademarks or trade dress other than restaurant services, including night club and bar services, movie screenings, and the sale of apparel and toys. As of 1998, Planet Hollywood also had a hotel under construction in New York City. However, Planet Hollywood has never offered casino services under its name; nor does Planet Hollywood presently have any concrete plans to do so. II. PLANET HOLLYWOOD’S TRADEMARKS. 7. From the beginning of its operations in 1991, Planet Hollywood has used trademarks and service marks comprised of the words “Planet Hollywood,” both standing alone and superimposed over a stylized star and globe symbol. Those trademarks and service marks have been duly registered with the United States Patent and Trademark Office as follows: Mark Registration No. Registration Bate Services/Goods “Planet Hollywood” (word mark only) 1,776,944 06/15/93 Jewelry, namely decorative tie pins of non-precious metal; clothing, namely tee-shirts, shirts, sweatshirts, polo shirts, sport shirts, shorts, jackets, caps, bolo ties; restaurant, bar, night club and restaurant takeout services (first use in commerce 10/22/91). “Planet Hollywood” (curved, stylized word mark) 1,788,712 08/17/93 Jewelry, namely decorative tie pins and lapel pins of non-precious metal (first use in commerce 10/22/91); printed matter, namely menus, stationery, notecards and postcards (first use in commerce 10/22/91); clothing, namely tee shirts, shirts, sweatshirts, polo shirts, sport shirts, shorts, jackets, caps and bolo ties (first use in commerce 10/22/91); toys, namely plush stuffed animals (first use in commerce 11/20/92); entertainment services, namely conducting exhibition services in the nature of festivals and movie screenings, the presentation of live and recorded music and film exhibitions (first use in commerce 10/22/91); restaurant, bar, night club and restaurant takeout services (first use in commerce 10/22/91). “Planet Hollywood” (curved, stylized wood mark superimposed over globe and star symbol) 1,798,442 10/12/93 Jewelry, namely decorative tie pins and lapel pins of non-precious metal (first use in commerce 10/22/91); printed matter, namely menus, stationery, notecards and postcards (first use in commerce 10/22/91); clothing, namely tee shirts, shirts, sweat shirts, polo shirts, sport shirts, shorts, jackets, caps and bolo ties (first use in commerce 10/22/91); toys, namely plush stuffed animals (first use in commerce 11/20/92); entertainment services, namely, conducting exhibition services in the nature of festivals and movie screenings, the presentation of live and recorded music and film exhibitions (first use in commerce 10/22/91); restaurant, bar, night club and restaurant takeout services (first use in commerce 10/22/91). “Planet Hollywood” (curved, stylized wood mark superimposed over globe and star symbol) 1,83 9,216 06/14/94 Metal key chains (first use in commerce 10/21/91); watches (first use in commerce 10/0/92). "Planet Hollywood” (word mark only) 1,890,377 04/18/95 Lapel pins of non-precious metal (first use in commerce 10/22/91); stationery, notecards and writing paper (first use in commerce 2/1/93); toys, namely plush stuffed animals (first use in commerce 11/20/22); conduction of exhibition services in the nature of festivals and movie screenings (first use in commerce 10/22/91). “Planet Hollywood” (curved, stylized wood mark superimposed over globe and star symbol) 1,918,766 09/12/95 Sunglasses (first use in commerce 08/0/93). (PH App. Vol. 1. Ex. 4 A). 8. As to each of these registered marks, Planet Hollywood has disclaimed any “exclusive right to use ‘Hollywood,’ apart from the mark as shown.” In addition, Planet Hollywood has admitted that particular colors or color combinations are not an element of the registered marks. 9. There is no dispute that the Planet Hollywood trademarks are extremely well known, both the stand-alone word marks and the word marks superimposed over the globe and star symbol (hereinafter referred to as Planet Hollywood’s “globe mark”). The record is replete with statements attesting to the extraordinary notoriety that has attached to the Planet Hollywood marks. For example, Mr. Barish attributed to the Chairman of Coca Cola the observation that Planet Hollywood “is the most famous and well-known brand created in the last thirty years” — an assessment with which Mr. Barish wholeheartedly agreed. While not going quite so far, a number of representatives of the defendants likewise have acknowledged that the Planet Hollywood mark is “well known” (Trial Tr. at 200); “well-recognized” (PH App. Vol. 2 Ex. 8 (Riviera-Soto Dep.) at 35), and “widely known” (PH App. Vol. 2, Ex. 12 (Thompson Dep.) at 114). Testimony by non-parties confirms this assessment (see, e.g., PH App. Vol. 2 Ex. 9, at 74; Ex. 10, at 103; Ex. 11, at 24). Indeed, defendants have admitted in their proposed findings that “[t]he Planet Hollywood mark is extremely famous” (Defendants’ and Counterclaim-Plaintiffs’ Proposed Findings of Fact in Support of Infringement, at 3, ¶ 14). Based on this and other substantial evidence offered during this proceeding, the Court finds that the Planet Hollywood trademarks identified in Finding No.7, above, are famous marks throughout the United States, and have substantial strength in identifying the source of goods and services provided. 10.However, the Court finds that Planet Hollywood has not proven the contention- — found in its proposed findings— that the word “Planet” is the dominant component of the mark. The Court has considered Mr. Earl’s testimony that the word “Planet” is dominant, as well as the evidence that Planet Hollywood is sometimes called “The Planet.” However, there is other evidence indicating that the word “Planet” is no more dominant in the mark than the word “Hollywood.” While Planet Hollywood has generally disclaimed the exclusive right to the word “Hollywood,” it has not done so with respect to the marks as shown. While Planet Hollywood’s globe mark does convey a “planetary” message, it does so in conjunction with “Hollywood,” a word that also is emblazoned across the globe. The stars on the Planet Hollywood mark are consistent with both a planetary and a Hollywood theme. And, the Court notes that Planet Hollywood’s current attempt to downplay the importance of the word “Hollywood” in its mark is in tension with Planet Hollywood’s earlier statement, in opposing summary judgment, that the word “Hollywood” is a “significant element[ ] of Planet Hollywood’s design mark” (Planet Hollywood’s Memorandum in Opposition to Hollywood Casino’s Motion for Summary Judgment on Planet Hollywood’s Design Mark Infringement, 9/14/98, at 11). This evidence suggests the words “Planet” and “Hollywood” have comparable emphasis in the marks. 11. Moreover, there is also evidence indicating that the word “Hollywood” is the dominant part of the mark. For example, the word “Hollywood” is the only word that has survived as the name evolved from “Café Hollywood” to “Planet Hollywood.” Planet Hollywood has acknowledged that “Planet Hollywood” was intended to be the definitive tribute to Hollywood, and as a result, it was deemed essential to include the word “Hollywood” in the name. In a suit against an alleged infringer named “Planet Hoboken,” Planet Hollywood agreed as part of a settlement that the establishment could go by the name “The Planet” (Trial Tr. 849; HC Tr. Ex. 500)- — -which would tend to suggest that Planet Hollywood does not consider “Planet” to be the dominant component of its mark. In sum, the Court finds that the evidence does not support a finding that “Planet” is the dominant component of the mark (whether that word is equal or subordinate to the word “Hollywood” as a component of the marks is a question the Court need not and does not decide). III. PLANET HOLLYWOOD’S TRADE DRESS. 12. The Planet Hollywood restaurants are a part of what has been referred to by some as the “eatertainment” industry, which is made up of themed restaurants that provide both food and an entertaining environment. Restaurants in the “eater-tainment” industry include Planet Hollywood, The Hard Rock Café, Rainforest Café, Harley-Davidson Café and Country Star Café. 13. Based on the Court’s site visit to Hard Rock Café and Planet Hollywood in Chicago, as well as the Court’s review of videotapes submitted by Hollywood Casino displaying the interiors of many of these other restaurants, the Court finds that Planet Hollywood has developed a look and feel, or “total image,” that distinguishes Planet Hollywood establishments from others in the eatertainment industry. The Court finds that the following combination of elements make up this distinctive image of Planet Hollywood restaurants. A. An Emphasis on Celebrity Ownership. 14. One of the defining characteristics of Planet Hollywood restaurants is the strong presence of, and association with, the three leading celebrity investors in the enterprise: Arnold Schwarzenegger, Sil-vester Stallone and Bruce Willis. There is no dispute that Planet Hollywood benefits from its association with those three individuals, whose action movies are among the most popular in the world (as measured by box office receipts). Indeed, Hollywood Casino itself submitted a proposed finding of fact acknowledging this point (Hollywood Casino Proposed Findings of Fact in Support of Infringement, at 3, ¶ 17). The presence of those three celebrity owners is conveyed not only by their personal appearances at various Planet Hollywood restaurants and functions, but in the decor of Planet Hollywood restaurants. Planet Hollywood tends to cluster together displays and memorabilia of all three of the lead celebrity owners near the entrances to their restaurants. Thus, immediately upon entering Planet Hollywood restaurants, the consumer sees displays of posters and memorabilia from these individuals emphasizing their association with Planet Hollywood. In addition, those celebrity owners are highlighted in the Hollywood Hills dioramas that are found in all Planet Hollywood restaurants (see Finding No. 18, infra). 15. While Planet Hollywood’s distinctive image also includes other elements, which the Court will describe below, the Court finds that this association with Messrs. Schwarzenegger, Stallone and Willis, and the emphasis of those celebrities in the decor of the Planet Hollywood restaurants, is the single most important element contributing to the Planet Hollywood image. B. Display of Hollywood Memorabilia. 16. The Court finds that the display of memorabilia from famous Hollywood movies is also an important part of the distinctive look and feel of Planet Hollywood restaurants. Although there is a focus on the action movies involving the three lead celebrity owners, the Court finds that the overall image of Planet Hollywood is not limited to the presentation of memorabilia from those movies: Planet Hollywood presents memorabilia from Hollywood movies spanning a variety of genres and generations. However, contrary to Planet Hollywood’s assertion, the Court finds that the fact that the memorabilia is displayed in plexiglass display cases is not a distinctive part of Planet Hollywood’s presentation of memorabilia. The Court is mindful of Mr. Earl’s testimony that he devised the idea of a “clear modern look” for the display cases to make them distinctive to Planet Hollywood (Trial Tr. 768-769). However, as Mr. Earl further conceded, the use of display cases employing plexiglass is not unique, and may be found in many places — such as the Smithsonian Institute (Trial Tr. 771-72). Based on a consideration of all the evidence presented, including the Court’s site visits to Planet Hollywood and Hollywood Casino, the Court finds that the design of the display cases is not sufficiently unique, or sufficiently identifiable to Planet Hollywood, to be a distinctive part of the Planet Hollywood image. C. The Use of Video Clips. 17. Planet Hollywood restaurants use monitors to display video clips of movies and earlier Planet Hollywood restaurant openings. Those video clips contain a limited amount of material, and then recycle and continuously repeat throughout the hours of Planet Hollywood’s operations. The same video clips are used at all Planet Hollywood restaurants at any given time (although they are, of course, changed over time). Thus, individuals in Planet Hollywood restaurants in Chicago, New York and Orlando at a particular point in time would see the same video clips being displayed. The Court finds that this presentation of video clips is part of the distinctive look and feel of Planet Hollywood restaurants. D. The Display of Dioramas Featuring the Hollywood Hills. 18. All Planet Hollywood restaurants prominently display a diorama of the Hollywood Hills. Some of the items depicted in the diorama may vary from one Planet Hollywood restaurant to the next, but certain stylized elements remain constant: such as, cutouts of the three lead celebrity owners (as well as other celebrities) prominently displayed, and a depiction of city lights of Hollywood as viewed from a balcony that uses fiber optics to recreate the lighting. The Court finds that those dioramas, which further underscore the celebrity ownership of Planet Hollywood, contribute to the distinctive image of Planet Hollywood restaurants. E. Themed Rooms. 19. Planet Hollywood restaurants typically have a series of three distinct rooms, each of which has a different theme: Hollywood Hills, science fiction, and adventure. While some Planet Hollywood restaurants also may have additional rooms that promote other themes that resonate with customers in a particular location (e.g., a “gangster room” in Chicago), all Planet Hollywood restaurants have as their lead concepts rooms promoting the same three themes. The Court finds that those theme rooms are part of the distinctive image of the Planet Hollywood restaurants, which Planet Hollywood uses to distinguish itself from other theme restaurants. F. The Planet Hollywood Marks. 20. Planet Hollywood restaurants conspicuously display the famous Planet Hollywood registered trademarks identified above. The admittedly famous marks help to uniquely identify the Planet Hollywood restaurants and are a distinctive part of the image conveyed by Planet Hollywood. G. Celebrity Handprints. 21. All Planet Hollywood restaurants feature a display of celebrity handprints, located just outside the front door. The handprints are obtained from a variety of celebrities (not just the owners), and the same sets of handprints are displayed in the same manner at Planet Hollywood restaurants. The Court is aware that other enterprises also use celebrity handprints: Grauman’s Theater in California is famous for it, and indeed, located just a few blocks from the Planet Hollywood location in Chicago is a sporting goods store that also displays on the exterior walls celebrity handprints (albeit mainly from sports figures). However, the Court finds that the manner of presentation of the handprints by Planet Hollywood, and the consistent use of this presentation across Planet Hollywood restaurants, is one element of the distinctive look and feel that is associated with Planet Hollywood restaurants. H. Art Deco Look. 22. Planet Hollywood has attempted to create an “art deco” look, which it describes as “reminiscent of Southern California and the Beverly Hills Hotel, with an emphasis on the colors pink, green, with shades of blue and purple, and palm trees throughout” (Planet Hollywood’s Proposed Findings of Fact, at 7, ¶¶ 25(7)(8)). Hollywood Casino has quarreled with Planet Hollywood’s attempt to label the Planet Hollywood decor as “art deco.” However, Samuel G. Bocchicchio, Hollywood Casino’s Vice President of Design and the person responsible for all creative design for the Hollywood Casino facilities, acknowledged that there is no single form that art deco takes: “[W]hen you say to define art deco, you can define it, but [what] it means to an artist, it’s a different look, different to different artists” (Trial Tr. 357). Based on the Court’s review of the evidence, including its visit to the Planet Hollywood restaurant in Chicago, the Court finds that the decor fits with the definition proposed by Planet Hollywood. Furthermore, the Court finds that this decor, in combination with the other elements set forth above, is part of the look and feel of Planet Hollywood restaurants that makes them distinctive. I. Items Not Included In Planet Hollywood’s Trade Dress. 23. There are certain additional items that Planet Hollywood claims as part of its trade dress, which the Court finds are not part of the distinctive image of Planet Hollywood restaurants: a. Hollywood Icons. Planet Hollywood asserts that its trade dress includes “the use of Hollywood icons brought to life in an attempt to make patrons feel that they have stepped right into the movies” (Planet Hollywood’s Proposed Findings of Fact, at 7, ¶ 25(3)). At most, this statement is an attempt to encapsulize the image that is created by the elements of trade dress described above. The Court finds that this statement is far too amorphous to identify a separate element of Planet Hollywood’s distinctive image. b. The Sale of Retail Merchandise. Planet Hollywood asserts as a part of its trade dress “the sale of retail merchandise including ‘Hollywood’ merchandise and merchandise bearing the word ‘Planet Hollywood’ logo, sold in a studio store” (Planet Hollywood’s Proposed Findings of Fact at 7, ¶ 25(6)). The fact that the Planet Hollywood marks are prominently displayed in the store helps identify the facility as “Planet Hollywood” — but that is due to the appearance of the marks, and not from the fact of merchandise being sold. The evidence presented shows that it is typical for “eatertainment” restaurants (such as, for example, Hard Rock Café) to sell merchandise in a store that is adjacent to the restaurant. The Court finds that neither the manner of selling the retail merchandise, nor the fact that it is “Hollywood” merchandise, is sufficiently distinctive or unique to distinguish Planet Hollywood. c. Hawaiian Shirts. Planet Hollywood asserts as a part of its trade dress “the sale and use of Hawaiian-type JAM shirts using black, pinks and yellows” (Planet Hollywood’s Proposed Findings of Fact, at 7, ¶ 25(12)). Those shirts were designed by one of the celebrity owners, Mr. Schwarzenegger, who frequently wears the shirt during personal appearances promoting Planet Hollywood. However, suffice it to say that Hawaiian-style shirts using those colors are not uncommon. Planet Hollywood has not offered evidence sufficient to establish that the Hawaiian shirts using that color scheme are unique to Planet Hollywood, or are uniquely associated by consumers with Planet Hollywood. The Court finds that those shirts are not part of Planet Hollywood’s trade dress. 24. The Court’s findings that the items described in Finding Nos. 14-22 above constitute elements of the distinctive look and feel of Planet Hollywood restaurants are limited by two considerations in particular. First, the Court does not find that any single element, alone, constitutes Planet Hollywood’s trade dress. While certain of these elements (for example, the celebrity ownership) are plainly more important than others in creating the distinctive image of Planet Hollywood, it is the combination of all of those elements together that the Court finds creates the distinctive look and feel of Planet Hollywood restaurants' — a point that Planet Hollywood concedes (Trial Tr. 792). Second, the Court emphasizes that it does not generally find that any and all types of presentations of “video clips,” or “Hollywood memorabilia,” or an “art deco look reminiscent of Southern California,” or “dioramas featuring the Hollywood Hills” are unique to Planet Hollywood. Those are broad labels, which are a shorthand way to describe the visual and mental image created by the specific manner in which Planet Hollywood restaurants have implemented those elements. Plainly, a number of those broadly described elements could be, have been, and are now implemented by others in ways different than the manner of implementation chosen by Planet Hollywood. Planet Hollywood concedes as much: Planet Hollywood asserts, for example, that its trade dress is not merely in the fact that Planet Hollywood displays Hollywood memorabilia, but rather in the type of memorabilia and the manner of its display. Thus, the Court’s findings as to the elements that make up the distinctive Planet Hollywood image are limited to the specific manner in which Planet Hollywood has implemented those combination of elements. 25. Unlike the case with Planet Hollywood’s marks, which Hollywood Casino concedes are famous, Hollywood Casino disputes that Planet Hollywood’s trade dress is even protectable at all, much less famous. Hollywood Casino points to statements made by Planet Hollywood in an earlier lawsuit with Hard Rock Café as establishing that the elements Planet Hollywood now claims as its trade dress are not, in fact, unique to Planet Hollywood or protectable. As noted above, the Hard Rock Café is a part of the “eatertainment” industry. Several years before this lawsuit, the owners of the Hard Rock Café filed suit against Planet Hollywood in federal court in California alleging, among other things, that Planet Hollywood’s display of themed memorabilia infringed Hard Rock Café’s trade dress. In defending that lawsuit, Planet Hollywood asserted that the Hard Rock “motif’ was not entitled to trade dress protection because it was functional, was not inherently distinctive, and had no secondary meaning. In aid of that defense, Planet Hollywood argued that “the successful concept of combining an entertainment-themed restaurant in a museum-like setting is functional and therefore cannot be permanently appropriated for the exclusive use of any single competitor” (HC Ex.: Seidel Dec., Ex. 5, at 4-5). Planet Hollywood argued that “[functional elements that are part of ‘the actual benefit that the customer wishes to purchase’ are not limited to only the item actually purchased, but include the atmosphere that the customer enjoys with a meal” (Id., Ex. 5, at 10-11). Planet Hollywood asserted that “it would not be possible to retain the basic appeal of an entertainment industry oriented restaurant without utilizing memorabilia” (Id., Ex. 5 at 9), and that “[t]he glamour of the entertainment industry, the feature of Planet Hollywood that Morton objects to, is lawfully available for copying because of the customer’s interest in and desire for that feature in a particular class of restaurants” (Id., Ex. 5 at 11). 26. The Court takes judicial notice that Planet Hollywood’s motion to dismiss the trade dress infringement claim was denied in Morton v. Rank America, Inc., 812 F.Supp. 1062 (C.D.Cal.1993). Thus, Planet Hollywood’s trade dress arguments did not persuade that court to dismiss the case. Before there was any final ruling on the merits of the trade dress infringement claim by Hard Rock or on Planet Hollywood’s defenses, the parties entered into a settlement agreement resolving that litigation. Neither party has offered into evidence a copy of the settlement agreement or proof of its terms, and the Court will not infer that the settlement agreement contains any admissions or other statements that would indicate that either party prevailed on the trade dress argument. On the evidence submitted, the Court does not find that Planet Hollywood prevailed in the Hard Rock litigation. 27. Hollywood Casino also argues that the items Planet Hollywood claims for its trade dress are used by many restaurants in the “eatertainment” business. There is no dispute that restaurants other than Planet Hollywood display entertainment-related memorabilia in a themed decor, and that such restaurants existed prior to Planet Hollywood (Trial Tr. 565-66). In its proposed findings of fact, Hollywood Casino has provided a chart identifying nine other “well known eatertainment industry restaurants” (including the Hard Rock Café), many of which feature, as does Planet Hollywood, loud music, video displays, merchandise bearing logos, and memorabilia (Defendants’ and Counterclaim Plaintiffs’ Proposed Findings of Fact in Support of Non-Infringement, at 17-18, ¶ 70). 28. The Court has considered the evidence on this subject, including the videos submitted by Hollywood Casino showing the interiors of those other restaurants. The Court finds that the look and feel of Planet Hollywood is distinct from the look and feel created by these other restaurants, which typically promote themes other than “Hollywood” (such as country, rock music, blues, or sports). The Court finds that although those other restaurants share with Planet Hollywood certain elements that can be generally labeled as “loud music, video displays, merchandise bearing logos, and memorabilia,” those other restaurants do not implement the elements in the same way as does Planet Hollywood. In addition, the Court finds that Planet Hollywood claims (and, in fact, Planet Hollywood restaurants possess) certain distinctive elements that are not in evidence at the other restaurants cited by Hollywood Casino: such as, the Planet Hollywood marks, the association with the celebrity owners Schwarzenegger, Stallone and Willis, and the distinctive Hollywood Hills diorama. The Court finds that the fact that those other restaurants possess elements that meet the same broad general description as certain elements of Planet Hollywood’s image does not eliminate or diminish the ability of the specific combination of elements implemented by Planet Hollywood from serving as a designator of source. 29. The Court finds that the Planet Hollywood trade dress (as found by this Court) is a strong signifier of source. Planet Hollywood has offered no surveys or other studies to attempt to establish the strength of its trade dress. However, the evidence shows that the plaintiffs have engaged in extensive marketing and promotional activities to create consumer recognition both of the Planet Hollywood trademark and the distinctive elements of Planet Hollywood’s appearance. Since 1991, Planet Hollywood has spent more than $45 million on marketing and promotion (although some of that has been for promotion outside the United States). Various elements of Planet Hollywood’s distinctive look and feel have received substantial press coverage (such as the celebrity ownership), as a result of Planet Hollywood’s connection to the Hollywood movie industry. In 1997, defendants sold more than $195 million in merchandise bearing the Planet Hollywood marks, which was nearly forty percent of the annual direct gross revenues from the Planet Hollywood establishments. This level of sales persuades the Court both that the Planet Hollywood marks (which are admittedly famous, and are a part of its trade dress) have wide circulation among the consuming public, and that a large number of people have visited the Planet Hollywood restaurants throughout the country and thus have been exposed to the distinctive elements of their appearance. IV. THE DEFENDANTS/COUNTER-PLAINTIFFS. 30. Hollywood Casino Corporation is a Delaware corporation, with its principal place of business in Dallas, Texas. Hollywood Casino owns and operates two gaming facilities, which are also parties to the Amended Complaint and Amended Counterclaim: Hollywood Casino Aurora, Inc., an Illinois corporation with its principal place of business in Aurora, Illinois, and Hollywood Casino Tunica, Inc., a Mississippi corporation with its principal place of business in Robinsonville, Mississippi. A third casino operation is currently under construction in Shreveport, Louisiana. 31. Until recently, Hollywood Casino also owned and operated the Sands Hotel and Casino (the “Sands”) in Atlantic City, New Jersey, by and through a separate wholly-owned subsidiary or division of Pratt Hotel Corporation. Edward T. Pratt, III, who is a defendant but not a counterclaim plaintiff, is a principal, president and chief executive officer of all three of the Hollywood Casino corporations involved in this lawsuit. Greate Bay Casino Corporation (“Greate Bay”), a Delaware corporation with its principal place of business in Dallas, Texas, is also a defendant and a counterclaim plaintiff. Greate Bay is the parent of Greate Bay Hotel and Casino, Inc., which presently owns and operates the Sands. During the 1980s and up until December 18, 1996, the Pratt Hotel Corporation owned and operated the Sands. Effective January 1, 1997, the Pratt Hotel Corporation changed its name to Greate Bay. 32. At all relevant times, the Pratt family has owned or directly controlled Hollywood Casino Corporation, Pratt Hotel Corporation, Greate Bay Casino Corporation, Hollywood Casino-Aurora, Inc., and Hollywood Casino-Tunica, Inc. 33. The Hollywood Casino facility in Aurora, Illinois, opened on June 17, 1993, although it was publicly dedicated one month earlier. The Hollywood Casino in Tunica opened in August 1994. Tunica and Chicago are the third and fourth largest gaming markets in the country, respectively (behind Las Vegas and Atlantic City). It is conceded that the opening of the Hollywood Casino in Aurora marked the first actual use of the term “Hollywood Casino” by defendants for the operation of a casino (Trial Tr. 187). V. HOLLYWOOD CASINO’S MARKS. 34. Hollywood Casino Corporation owns the following federal trademark registrations for the use of the term “Hollywood Casino”: Mark Registration No. Registration Date Services/Goods “Hollywood Casino” (stylized word mark) 1,849,650 08/09/94 Casino services (first use in commerce 06/17/93). “Hollywood Casino” (word mark) 1,851,759 08/30/94 Casino services (first use in commerce 06/17/93). “Hollywood Casino” (word mark”) 1,903,858 07/04/95 Hotel services (first use in commerce 09/09/94). HOLLYWOOD CASINO “Hollywood Casino” (stylized word mark) 1,949,319 01/16/96 Hotel services (first use in commerce 09/09/94). “Hollywood Casino” (stylized word mark with “film strip” background) 2,256,306 06/29/99 Casinos; restaurant and bar services; hotel services (first use in commerce 07/29/96). “Hollywood Casino” (stylized word mark with “film strip” background) 2,256,307 06/29/99 . Casinos; restaurant and bar services; hotel services (first use in commerce 07/31/96). 35. None of these six registrations asserts any color component as a protected element of the marks. In addition, each of these registrations specifically disclaims any exclusive right to use the word “casino” apart from the trademark as shown. 36. When Hollywood Casino opened the Aurora facility in June 1993, the only stylized version of the word “Hollywood Casino” that was used is the one registered as No. ’650, which appears as follows: This version of the Hollywood Casino mark bears no resemblance to any of the Planet Hollywood marks. Thereafter, Hollywood Casino began using a different stylized version of the same word mark, which is registered as No. ’319 and which appears as follows: This version of the Hollywood Casino mark bears no resemblance to any of the Planet Hollywood marks. At some point thereafter (the date is not clear), Hollywood Casino began using an unregistered version of this word mark, which was encircled with stars and which appears as follows: The testimony established that the development of this latter stylized version was intended to give the mark a “more Hollywood” appearance (e.g., PH App. Vol. 4, Ex. 33 at 115). This version, which was used principally on merchandise sold by Hollywood Casino, does not bear any resemblance to any of the Planet Hollywood marks. 37.In 1996, Hollywood Casino began using another presentation of the Hollywood Casino mark, which is registered under number ’306 and which appears as follows: This particular mark (which will be referred to as the “film strip mark”) is widely used by the Hollywood Casino on brochures, direct marketing, billboards, and within the casinos themselves. Although the testimony did not reveal when this mark was first used, the trademark registration identifies July 29, 1996 as the date of its first use in commerce (see Finding No. 34). Hollywood Casino currently uses both the film strip mark and the word mark (without background graphics). 38.The Court finds that there are a number of differences between the trademark names “Planet Hollywood” and “Hollywood Casino.” Although the two names share the word “Hollywood,” that word appears in a different sequence in each of the marks. The name “Planet Hollywood” has five syllables, and the name “Hollywood Casino” has six. When viewed, the word marks do not look the same (the differences in the words used are further emphasized by the use of different fonts and type styles). When spoken, the word marks do not rhyme or otherwise sound the same. The Court finds that the word marks are sufficiently different that consumers confronting the name “Hollywood Casino” in the marketplace would not likely be confused, or associate that name with Planet Hollywood. 39.The Court also finds that there are substantial differences between the Planet Hollywood mark that features the stylized globe, and the Hollywood Casino film strip mark: A. The Planet Hollywood mark consists of a globe designed to replicate the Planet Earth, with a number of five-pointed stars embedded in it and one five-pointed star shooting from it. By contrast, although the backdrop of the Hollywood Casino film strip mark is circular, it is in no way suggestive of the Planet Earth. And, while there has been substantial dispute about whether the circular back drop of the Hollywood Casino logo is a sphere or a flat disk, the Court finds credible the testimony of Mr. Bocchicchio that it was intended to — and does — portray a flat disk (Trial Tr. 394 — 95). The Court believes that this interpretation is supported not only by the way the word “casino” casts a shadow over the circular backdrop (suggesting lack of multiple dimension in the circle), but also by the border around the entire perimeter of the circle which, to the Court’s eye, suggests that the circle is flat — as is a disk. B. Moreover, unlike the case with the Planet Hollywood globe mark, there are no stars embedded in the disk on the Hollywood Casino film strip mark, and no stars shooting from it. Planet Hollywood characterizes the eight-pointed stylized figure that dots the “i” in the word “Casino” as a star, while Hollywood Casino calls it “scintillation” (which Webster defines as a sparkle or flash of light). Whatever the proper characterization, the Court finds that the eight-sided object on the Hollywood Casino mark clearly is intended as punctuation, and does not resemble the five-pointed star that is shooting from the globe in the Planet Hollywood mark. C. In the Hollywood Casino film strip mark, the word “Hollywood” is superimposed over a depiction of a strip of film, which itself is superimposed on top of the circular background. The Planet Hollywood mark uses nothing similar to this film strip. Indeed, prior to adopting its stylized globe mark, Planet Hollywood reviewed a number of designs, one of which used a strip of film (HC Ex.: Seidel Dec., Ex. 12, 142-43). Planet Hollywood did not adopt that particular design. D. The type style used for the words on the respective marks is different, as is the placement of the words on the backdrops. In the Planet Hollywood mark both words appear in capital letters, one word on top of the other. The words appear on the lower center portion of the globe with the first letters of each word aligned vertically, and with the word “Hollywood” thus extending beyond the word “Planet.” By contrast, in the Hollywood Casino film strip mark, the word “Hollywood” appears in all capital letters, but in a different style type than used in the Planet Hollywood mark. The word “Casino” appears in a stylized script, with only the first letter capitalized. Unlike the Planet Hollywood mark, in which the word “Hollywood” extends to the right of the word “Planet,” the word “Casino” in the Hollywood Casino mark is centered directly under the word “Hollywood.” E. In addition, while Planet Hollywood disclaims that color is a part of the logo, the Court notes that the samples of the Planet Hollywood mark that have been offered into evidence all use a globe of a sky blue color, with the words Planet Hollywood in the red letters with white borders. The Hollywood Casino film strip mark does not use those same red and blue colors (Compare HC Tr. Ex.: 318A with HC Tr. Ex. 318D). 40. The Court notes that Planet Hollywood has offered no survey or other consumer evidence to indicate any actual confusion when people see the Hollywood Casino film strip mark. Based on the evidence submitted, the Court finds that the marks used by Hollywood Casino are not so similar as to be likely to create in the mind of consumers confusion with the Planet Hollywood marks, or any association between Hollywood Casino and Planet Hollywood. 41. Planet Hollywood also has asserted that Hollywood Casino has used a variation of the film strip mark, in which a five-pointed star appears immediately above it, as shown below: (Planet Hollywood Proposed Findings of Fact, at 18-19, ¶ 80). The Court finds that the above graphic does not accurately represent Hollywood Casino’s use of the film strip mark. In its print advertising, Hollywood Casino typically uses a border shell that includes depiction of lights with a star at the top. In a few of those ads, the film strip mark appears directly under the star (e.g., HC Tr. Ex. 128, at H007130). The depiction by Planet Hollywood crops out the rest of the border shell, and thus does not convey the mark as it is seen by consumers who read those ads. Moreover, the Court finds that even in the inaccurate manner portrayed by Planet Hollywood, the film strip mark with the star over it is distinct from the Planet Hollywood globe mark in virtually all of the ways described in Finding No. 39, supra, and would not be likely to create confusion or an association with Planet Hollywood. 42. The Court also finds that Planet Hollywood has failed to establish that in adopting the film strip mark, it was the intent of Hollywood Casino to create a mark confusingly similar to that of Planet Hollywood. In making that finding, the Court is mindful of the August 3, 1995 memorandum from Richard Knight (then the executive vice president for operations of Hollywood Casino Corporation), in which he referenced two sample tee shirts, one with the then current Hollywood Casino logo and the other, with an older Hollywood Casino logo design that was being “revamped with the addition of a circular design ala Planet Hollywood” (PH App. Vol. 5, Ex. 35dd). No evidence has been offered as to the appearance of the particular proposed “revamped” mark to which Mr. Knight referred (Trial Tr. 895), or how it compares to the film strip mark actually adopted by Hollywood Casino. The Court has considered Mr. Knight’s testimony that he was not involved in the creation of that revamped design and did not know where it came from; that his statement was a reflection of the use of a circular background; and that he could have just as easily said “ala Hard Rock” as “ala Planet Hollywood” (PH App. Vol. 4, Ex. 33, at 118, 143-44). In this latter regard, the Court notes that in fact a number of restaurants other than Planet Hollywood do use circular backdrops for their logos (see, e.g., Trial Ex. 318B; Trial Tr. 735). The Court has also considered the testimony of Mr. Bocchicchio, who designed the film strip mark, that he wanted to create a look that represented the Hollywood industry, and after attempting several variations, arrived at this depiction which used the film strip and the flat disk which was intended to represent the end of a film canister (Trial Tr. 394). 43. The Court finds credible Mr. Boc-chicehio’s explanation of how he derived the Hollywood Casino film strip mark. Thus, the Court finds not only that the film strip mark is not confusingly similar to the Planet Hollywood mark, but also that it was not Hollywood Casino’s intent to create a mark that was confusingly similar to the Planet Hollywood mark. YI. THE NATURE OF THE CASINOS OPERATED BY HOLLYWOOD CASINO. 44. The casinos operated by Hollywood Casinos in Aurora and Tunica are both “dockside” casinos, as is necessary due to applicable laws in Mississippi and Illinois that allow casino gambling to take place only on structures resting on water. Hollywood Casino is in the process of developing a third location, this one in Shreveport, Louisiana, which will also be a dockside casino. However, the fact that these are dockside locations does not affect the games offered by these casinos, which are not materially different from the complement of games offered by land-based full service casinos. 45. A “full service” casino is one that offers games of chance that are banked by the house. Full service casinos offer a complete range of casino games, including roulette, craps, slot machines and black jack. The evidence establishes that the Hollywood Casinos in Aurora and Tunica fit the definition of “full service” casinos. VII. THE LEVEL OF SOPHISTICATION OF CASINO CUSTOMERS. 46. Saul Leonard, an expert witness retained by Hollywood Casino with certain expertise in the hospitality and gaming industries, testified that “[a]ny time any person makes a determination to go to a casino or any similar type of facility, they have provided a reasonable amount of care as to the reason why they are going there, especially if they have an alternative between that facility and another one” (PH App. Vol. 2, Ex. 18, at 64-65). The Court finds that this testimony is supported by other evidence and is credible. 47. Mr. Leonard also opined that the typical casino customer does not “risk[ ] a great deal of money on the gambling budget” (Trial Tr. 626). However, the evidence established that with respect to casinos in the greater Chicago area (which would include Hollywood Casino in Aurora), the casino’s average “win per admission”' — or put another way, the average amount lost by each patron who gambles— is $58.40 (Tr. Ex. 201, at 47). That figure is higher for individuals who frequent casinos in Las Vegas and Atlantic City (Trial Tr. 677-78). The Court finds that this kind of expenditure, which does not include any amounts spent for food, beverage or merchandise purchases, indicates that patrons of a casino have made a purposeful (and not impulsive) decision to spend their entertainment dollars on a casino visit. Indeed, during closing argument, counsel for Hollywood Casino admitted that individuals who frequent casinos are making deliberate and not impulsive purchases: “They know which casino they are going to and why they want to go there” (Trial Tr. 919). 48. Hollywood Casino has argued (and offered opinion testimony) that many individuals who frequent casinos are not sophisticated about the nuances of gambling itself (see Hollywood Casino’s Proposed Findings of Fact in Support of Infringement, at 23-24, ¶¶ 134-136). There has been no evidence to controvert the opinion testimony offered by Hollywood Casino on this point, which the Court finds credible. However, the Court finds that any lack of sophistication that casino patrons have about how to gamble (e.g., whether the odds favor standing pat or taking another card in a particular game of Blackjack) does not establish a lack of “sophistication” (or purposefulness) about deciding whether or where to gamble. The Court finds that individuals who frequent casinos are likely to have made a purposeful decision to do so — a point which Hollywood Casino concedes (Trial Tr. 919). That decision becomes no less rational or purposeful merely because the person making it may not be skillful in the art of gambling. VIII. THE SERVICES OFFERED BY THE PARTIES. 49. Planet Hollywood restaurants offer both food and bar services, as well as the retail sale of merchandise. Although none of the Planet Hollywood restaurants themselves offer any casino services at the present time, Planet Ho