Fancaster, Inc. v. Comcast Corp. (832 F. Supp. 2d 380, 2011)

OPINION

DEBEVOISE, Senior District Judge.

This matter arises out of a lawsuit between two companies that offer online video content via their respective websites. On June 12, 2008, Fancaster, Inc. (“Fan-caster”) filed a Complaint against the Comcast Corporation, Comcast Interactive Media, LLC, and Comcast Management, LLC (collectively referred to as “Com-cast”), asserting claims for trademark infringement, 15 U.S.C. § 1114(1), false designation of origin, unfair competition, and trade name infringement, 15 U.S.C. §§ 1125(a), 1117(a), cybersquatting, 15 U.S.C. § 1125(d), under the Lanham Act, and trademark misappropriation, unfair competition, and deceptive practices under N.J.S.A. 56:4-1 and New Jersey common law, and seeking treble damages, attorney’s fees, and injunctive relief.

On June 24, 2008, Fancaster filed an Amended Complaint to add claims for unjust enrichment and trade name infringement under New Jersey law. On September 18, 2008, Comcast answered and asserted counterclaims against Fancaster and claims via a Third-Party Complaint against Fancaster’s President, Craig Krueger, for fraud on the United States Patent and Trademark Office (“PTO”), 15 U.S.C. § 1120, and cyber piracy, 15 U.S.C. § 1125(d), and seeking damages, lost profits, attorney’s fees, declaratory judgment that the Fancaster mark was (1) abandoned; (2) not used in commerce; and (3) obtained and/or maintained by fraud, 15 U.S.C. §§ 1064, 1119, and injunctive relief. On November 1, 2010, Fancaster filed a Supplemental Complaint setting forth allegations of continued infringement.

On April 29, 2011, Comcast filed a Motion for Summary Judgment on all of Fan-caster’s claims, pursuant to Federal Rule of Civil Procedure 56(a), as well as a Motion in Limine to exclude the reports and testimony of Fancaster’s damages expert, pursuant to Federal Rule of Evidence 702, 703, and 403. That same day, Fancaster and Mr. Krueger filed a Motion for Summary Judgment on Comcast’s counterclaims and third-party claims, pursuant to Federal Rule of Civil Procedure 56(a), and a Motion to Strike Comcast’s affirmative defenses of fraud, unclean hands, laches, and acquiescence, pursuant to Federal Rule of Civil Procedure 12(f). On May 5, 2011, Fancaster filed a Motion in Limine to exclude the reports and testimony of Comcast’s PTO and cyber piracy law experts and a Motion in Limine to exclude the surveys conducted by Comcast’s consumer confusion expert and his testimony, both pursuant to Federal Rule of Evidence 702, 703, and 403.

For the reasons set forth below, Com-cast’s Motion for Summary Judgment is GRANTED in part and DENIED in part. Fancaster’s infringement-related claims are dismissed because the record does not support a likelihood of confusion among the marks at issue in this case. In addition, Fancaster is not entitled to seek corrective advertising as a remedy for those claims. However, Fancaster’s cyber piracy claim must remain this case because Comcast only addressed that claim in its reply brief.

Fancaster’s and Mr. Krueger’s Motion for Summary Judgment is also GRANTED in part and DENIED in part. Com-cast’s claim for fraud on the PTO is dismissed because there is no evidence in the record from which a jury could infer fraudulent intent. Comcast’s claim for declaratory judgment is also dismissed because it is duplicative of its claim for fraud on the PTO. However, Comcast’s claim for cyber piracy may move forward as there remain factual questions regarding distinctiveness and bad faith.

Fancaster’s Motions in Limine are GRANTED in part and DENIED in part. The majority of testimony of Comcast’s PTO and cyber piracy experts is excluded, while Comcast’s consumer confusion expert’s March 2009 survey and testimony related thereto is also excluded. Finally, Fancaster’s Motion to Strike Comcast’s affirmative defenses of fraud, unclean hands, laches, and acquiescence is GRANTED.

I. BACKGROUND

A. The Fancaster Mark

On June 13, 1989, Fancaster’s president and sole director, Craig Krueger, registered the term FANCASTER with the PTO for use as a trademark in connection with “broadcasting services.” (Dickstein Decl. [ECF No. 130], Ex. 11.) In doing so, he swore under oath that he “ ‘has adopted and is using the trademark shown in the accompanying drawing for the following goods: communications’ and/or ‘broadcasting services,’ and that ‘[t]he trademark was first used on the goods in Interstate commerce on July 15, 1988; and is now in use in such commerce.’” (Perry Cert. [ECF No. 138] ¶ 2). The mark incorporates a pair of headphones turned on their side to take the place of the letter “C” so as to indicate that the mark relates to broadcasting. On September 8, 1994, Mr. Krueger filed a Combined Affidavit of Use and Incontestability for the FANCASTER mark with the PTO. In that affidavit, Mr. Krueger swore that he “was using the mark in commerce in connection with the broadcasting services that were stated in the registration, and had been doing so for five consecutive years.” (Id. ¶ 14.) As evidence of such use, he submitted blank letterhead and envelopes bearing the FANCASTER mark.

Over the years, Mr. Krueger used the mark in connection with a variety of activities, including selling Fancaster branded radios, see (Id., Exs., 14, 21, 22), charging customers to watch closed-circuit boxing matches, producing karaoke shows, see (Id., Ex. 4, 694:21-296:23), transmitting sponsored news messages to wireless pagers and cell phones, and conducting live demonstrations of FANCASTER broadcast services, see (Id., Exs., 13, 16, 19).

i. Fancaster.com

On July 22, 2006, Fancaster launched its website, fancaster.com. On the site’s homepage is the most recent version of the FANCASTER mark, which appears in light-blue lowercase lettering, and incorporates the aforementioned headphones taking the place of the letter “c”. Under the word “fancaster” appears the phrase “welcome to planet fancaster!” in gold lettering. Fancaster.com offers a wide variety of short video clips, most of which feature sports-related content and a sports fan or athlete speaking into a microphone displaying the fancaster mark to discuss a particular sporting event, sports team, or sports fans in general. A screenshot of fancaster.com, dated April 21, 2011, categorizes the video clips on the site as follows: Fancaster Picks, Football, Baseball, Basketball, Play-By-Play, Horse Racing, Extreme Sports, Mixed Martial Arts, Celebrities, Hockey, Body Building, Autographs, Other, Tennis, Mayhem, Auto, European Events, Golf, Food, Cycling. (Dickstein Decl. [ECF No. 130], Ex. 17.) Mr. Krueger testified that a unifying theme of the video clips on fancaster.com, no matter what category they fall under, is that they all involve broadcasting: “[everyone is speaking into a microphone and being recorded.” (Id., Ex. 6 at 64.)

According to Fancaster’s October 2009 business plan, “Fancaster is an early-stage Company that intends to develop a 21st century communications portal where user-generated video content is created by the fans and for the fans who want to emulate broadcasters or submit commentary on management, coaches, players, or teams.” (Id., Ex. 13 at 4.) Fancaster also “intends to produce content that traditional media ignore, such as videos of fans at unique events such as La Tomatina in Spain, Ostrich racing in Arizona, the Westminster Kennel Club Dog Show and the annual Nathan’s Hot Dog Eating Contest.” (Id. at 6.)

The business plan further states that “[t]he target market initially will be sports fans. The Company contemplates, however, expansion of its offerings to include both music and movie fans at later stages. For sports fans, Fancaster intends to focus on the ever-capricious but nonetheless influential demographic of 18-to-35 year old males.” (Id. at 4.) As of October 2009, Fancaster identifies “other fan sites such as www.fannation.com as well as larger user-generated and social networking sites such as YouTube and Facebook” as competitors. (Id. at 6.)

Mr. Krueger has marketed fancaster.com online on a few sports-oriented websites and those of several local pubs; however, he testified that most of Fancaster’s marketing efforts have not been geared toward the Internet. See (Id., Ex. 6 at 194-195.) He has instead focused marketing the website at sporting events, bars, on local television channels in Sioux Falls, South Dakota and Sioux City, Iowa, on radio stations in Charleston, South Carolina, and via flyers and handbills.

B. Comcast’s “The Fan”

Comcast, the well-known cable and broadband provider, offers television programming and movie channels to millions of customers across the United States. In 2003, Comcast began developing a means to deliver this content over the Internet. On November 20, 2003, Comcast launched a multi-media player on its website, Com-cast.net, that allowed users to watch cable television programming online. That player was called “The Fan” because it displayed available video content in a circular pattern that resembled a fan. On October 17, 2003, Comcast filed an application with the PTO to register “TheFan” as a trademark. On May 14, 2004, the PTO rejected Comcast’s application “on the ground that the mark was likely to be confused with the mark THE FAN for radio broadcasting services, owned by IBC Merger Corp.” (Boudett Decl. [ECF No. 160], Ex. 66.) On November 15, 2004, Comcast filed a document labeled “RESPONSE TO OFFICE ACTION DATED 5/14/04” in which it asked the PTO to reconsider its rejection of Comcast’s application. (Id.) In doing so, it listed a number of “marks that have been registered for related services and include the phrase “THE FAN,” including the FANCASTER mark. (Id.)

C. Comcast’s FANCAST

Comcast later sought to develop a standalone version of “The Fan” that would be available on a separate website. During the winter of 2006, Comcast paid an independent branding agency to conduct research and testing of possible names for this new media player. The agency was of the understanding, among other things, that (1) “[t]he name should help communicate that Website X is the ultimate interactive destination for TV and Movie fans,” and (2) “the name should somehow tie back to Comcast, [but] the name Comcast should not be used.” (Young Decl. [ECF No. 131], Ex. 1.) Using these criteria, the agency generated twenty-three potential names.

During the spring and summer of 2006, Comcast hired another branding agency to devise poteiitial names under similar criteria. According to the agency’s reports, Comcast’s primary target was 29-54 yearolds, of which 60% are female and 40% are male, that use “portal-centric authority sites” such as MSN, AOL, Amazon.com, ebay.com, and Netflix. (Id., Ex. 2.) Com-cast’s secondary target was 18 to 28 year olds that use sites like YouTube.com, ifilm, myspace.com, feedroom, atomfilms, Jib Jab, MeFeedia.com, and del.icio.us. (Id.) On June 23, 2006, the branding agency proposed the name “FanCast.com,” in addition to five other names. (Id., Ex. 4.) Shortly thereafter, the agency conducted consumer research, which indicated that “Fancast.com” performed the best overall. In addition, two members of the team at Comcast in charge of choosing a name for the new website testified that the FAN-CAST name was a logical joinder of “The Fan” and the Comcast name. See (Dickstein Decl. [ECF No. 130], Ex. 3, 4.) Consequently, Comcast decided to use the FANCAST name and began developing its website.

Comcast purchased the fancast.com domain name and filed an application with the PTO to conduct business using the FANCAST mark in August of 2006. (Perry Cert., [ECF No. 138] Ex. 68); (Sarowitz Decl. [ECF No. 151], Ex. 9.) Curiously, in September 2006, Fancaster began registering large numbers of “fancast” domains. (Perry Cert. [ECF No. 138], Ex. 70.)

i. Comcast’s Meeting with Mr. Krueger

On July 13, 2006, Mr. Krueger met with Comcast employees to pitch a program of his called Mobile Voter. At that meeting, he also pitched fancaster’s services and website, which he advised was about to be launched. Five days later, Mr. Krueger discovered that Fox SportsNet New England , a television channel owned by Com-cast, had an amateur broadcasting segment called Fancaster where young sports fans audition to appear on live television during professional sporting events. The segment is intended to encourage young people to pursue careers in television broadcasting. Fancaster segments are publicly posted on the CSNNE website. Mr. Krueger initially demanded that CSNNE cease and desist from using the Fancaster mark. However, after learning more about the nature of the program, he decided not to sue but reserved the right to do so if the program changed. On July 25, 2006, Comcast informed Mr. Krueger that discussions regarding a potential business relationship were suspended “due to infringement issues surrounding Fancaster.com.” (Boudett Decl., [ECF No. 160] Ex. 107.)

ii. Comcast Launches Fancast.com

In January 2008, Comcast launched a fully operational version of the FANCAST website that allowed users to watch full-length premium mainstream media over the Internet, including television programming from basic channels like ABC, CBS, NBC, and Fox, as well as full-length studio movies offered by premium cable channels like HBO and Showtime. Indeed the FANCAST homepage states that visitors can use the site to “Watch Full TV Shows and Movies.” (Id., Ex. 44); (Poret Decl. [ECF No. 164], Appx. E.) The FANCAST website also offers certain sports-related television and movie content. FANCAST did not offer any user-generated content whatsoever.

Fancast.com features the FANCAST mark that appears in uppercase black letters next to a pastel “expanding universe design.” (Def. Br. [ECF No. 128] 3.) According to Comcast, the mark was intended “[t]o emphasize that FANCAST aggregated all forms of popular premium television and movie content.” (Id.)

Comcast marketed FANCAST to a national audience that consumes mainstream media. (Young Decl. [ECF No. 131] ¶ 4.) Comcast bought advertisements in various mainstream print publications, including The New York Times, LA Times, USA Today, Entertainment Weekly, and on television channels distributed via Com-cast’s cable television service. Comcast also bought banner ads on Comcast.net and other websites focused on popular TV and movies, such as TVGuide.com. In addition, Comcast purchased ads on internet search engines that would appear when users searched for keywords related to the names of specific television shows available on fancast.com, or terms such as “watch TV shows online.” (Id. ¶ 4.)

iii. Comcast Dismantles Fancast.com and Starts XfinityTV.com

By late 2009, Comcast had lost roughly $80 million on the FANCAST website, which relied entirely on advertising revenue. According to Comcast, this was due to “the unexpectedly high cost of distributing video content on the internet.” (Id.) Therefore, Comcast began to phase out the FANCAST service by offering a website branded “FANCAST Xfinity TV”, which was functionally identical to the existing FANCAST website, but allowed Comcast cable subscribers to access certain premium cable television content through a service called Xfinity TV. By the end of March 2011, Comcast took down the FAN-CAST website entirely and instead offered the Xfinity TV service exclusively to subscribers. All web traffic to www.fancast. com was redirected to www.Xfinitytv.com.

D. The Instant Lawsuit

On June 12, 2008, Fancaster filed a Complaint against Comcast asserting claims for trademark infringement, false designation of origin and unfair competition, trade name infringement, and cybersquatting under the Lanham Act, and trademark misappropriation, unfair competition and deceptive practices under New Jersey law, and seeking treble damages, attorney’s fees, and the following injunctive relief against “Defendants, their officers, agents, servants, attorneys, and all those persons in active concert and participation with them”: (1) a permanent injunction from using the FANCAST mark or any other mark “confusingly similar to Fancaster’s FANCASTER mark” (Compl. [ECF No. 1] ¶ 9(a)); (2) and order requiring them “to deliver to the court for destruction, or show proof of destruction of, any and all products, labels, signs, prints, packages, wrappers, receptacles, marketing materials and advertisements in Defendants’ possession or control which use or depict the designation FANCAST, or any other mark or name that is confusingly similar to Fancaster’s FANCASTER mark” (id. at ¶ 9(b)); (3) an order “to file with the court and serve upon Fancaster, within thirty (30) days after entry and service on Defendants of an injunction, a report in writing and under oath setting forth in detail the manner and form in which Defendants have complied with the injunction” (id. at ¶ 9(c)); and (4) an order “to transfer to Fancaster ownership of the domain name registrations for www. fancast.com, www.phancast.com, www. fancas.com, www.fancst.com, www. fancastic.com, and any other domain names containing the design or designation FANCAST,” or any other mark or name that is confusingly similar to Fancaster’s FANCASTER mark (id. at ¶ 9(d)).

On June 24, 2008, Fancaster filed an Amended Complaint to add claims for unjust enrichment and trade name infringement under New Jersey law. On September 18, 2008, Defendants answered and asserted counterclaims against Fan-caster and claims against Mr. Krueger for fraud on the PTO and cyber piracy, and seeking damages, lost profits, attorney’s fees, declaratory judgment that the Fan-caster mark was (1) abandoned; (2) not used in commerce; and (3) obtained and/or maintained by fraud, and the following injunctive relief against Mr. Krueger and Fancaster, and their agents servants, employees, attorneys, and all others in active concert and participation with any of them: (1) a permanent injunction “from registering or using, directly or indirectly, ‘www.fancast.org’ or any other domain name that contains the FAN-CAST mark, or any colorable imitation, simulation or typographical variation of it, either alone or in combination with any other term, or any domain name that is confusingly similar to any of the above” (Def. Compl. [ECF No. 8] ¶ 60(e)), (2) an order requiring Mr. Krueger and Fan-caster to (i) “assign to Comcast the registration of, and all rights in and to, the domain name www.fancast.org as well as any other domain name covered” by the injunction (id. at ¶ 60(f)(1)); (ii) “take all steps necessary to effectuate the transfer to Comcast of the domain name www. fancast.org, as well as any other domain name covered” by the injunction (id. at ¶ 60(f)(2)); and (iii) “file with this Court and serve on Comcast a report in writing under oath setting forth in detail the manner and form in which Faneaster and Krueger have complied with the terms of any injunction entered by this Court” (id. at ¶ 60(f)(8)), and (3) an order cancelling the FANCASTER trademark.

On February 23, 2009, Defendants filed an Amended and Supplemental Answer and Counterclaims setting forth additional allegations in support of their counterclaims, and seeking similar relief as that sought in their initial answer and counterclaims. On November 1, 2010, Faneaster filed a Supplemental Complaint setting forth allegations that Comcast’s Xfinity TV services and website constitute further infringement of the FANCASTER mark, and asserting the same causes of action and seeking the same relief as in its Amended Complaint.

E. Proposed Evidence of Potential Confusion Between Fancast.com and Fancaster.com

i. Internet Searches

Faneaster submits a number of screen-shots, dated between May 31, 2009 and April 22, 2011, reflecting the results of internet searches using a variety of search engines, including Google, Yahoo!, AOL, Altavista, Bing, and Dogpile, for the following search terms: “faneaster”, “fan-caste”, “fane”, “fanea”, “faneas”, “fancast”, and “+faneaster”. See (Boudett Decl., [ECF No. 160] Exs. 18-27, 30.) Those screenshots indicate that when one inputs one or more of those terms into those search engines, the results include (1) paid sponsored links to fancast.com and “xfinitytv.fancast.com”; (2) organic (i.e. non-sponsored) links to CSNNE’s Faneaster and www.fancast.com; and/or (3) suggested search terms for “fancast”, “faneaster comcast”, “FanCaster Comcast”, “fancast review”, and “fancast xfinity tv”, among others. See (id.)

ii. Overlapping Content

1. Sports

Faneaster submits a number of screen shots to show that both fancast.com and fancaster.com feature sports-related content. Specifically, Faneaster submits undated screen shots of (1) the fancast.com homepage, which features a tab that a user can click to view sports videos; (2) fan-cast.com’s sports section, which states, “XFINITY — Home of the Most Live Sports”, and offers the following categories of video content: “Highlights”, “NFL Videos”, “College Sports Videos”, “NBA Videos”, and “The Best of Sports TV”; and (3) fancaster.com’s aforementioned “Categories” section indicating that Fancaster also provides sports-related videos, including those relating to football, baseball, and basketball. See (Boudett Decl. [ECF No. 160], Ex. 44.)

Fancaster also submits screenshots, dated March 21, 2011 and May 3, 2011, of Google search results for the terms “fan-cast sports”, “fancast baseball”, “fancast basketball”, “fancast kentucky derby”, “fancast breeder’s cup”, “fancast nfl lockout”, “fancast sports trivia”, “fancast trivia contest”, and “fancast trivia”, — all of which provide links to fancast.com. See (id., Exs. 31, 32, 35, 37, 38, 39, 44.) Fancaster juxtaposes these screenshot with screenshots of fancaster.com offering video clips related to those search terms. See (id.)

Specifically with respect to basketball, Fancaster submits screenshots, dated March 27, 2011, of (1) faneast.com’s page entitled “CBS Sports NBA” featuring short video clips of “[t]he latest from around the NBA, including news, player interviews and press conferences, features, breakdowns of the biggest games, expert opinion, analysis and more”; (2) fan-cast.com’s page entitled “Big Ten College Basketball” featuring similar short clips relating to college basketball; (3) a short video clip on fancast.com of a college basketball coach giving a press conference; (4) a short video clip on fancast.com of an interview with a college basketball coach; and (5) a short video clip on fancast.com of a college basketball player giving a press conference. See (id., Ex. 31.) Fancaster juxtaposes those screenshots with screen-shots, dated May 3, 2011, from fancaster.com of short video clips related to college and professional basketball. See (id.)

2. Celebrities

Fancaster also submits a number screenshots to show that fancast.com and fancaster.com share celebrity-related content, including screenshots, dated May 3, 2011, of Google search results for the terms “fancast” followed by the name of a number of celebrities offering links to fan-cast.com. See (id., Exs. 33, 34, 40, 41, 42, 43, and 45.) Fancaster juxtaposes these screenshots with screenshots of video content on fancaster.com related to those celebrities. See (id.)

3. Other Content

Finally, Fancaster submits screenshots to show that fancast.com and fancaster.com share content beyond sports and celebrities. Specifically, Fancaster submits screenshots, dated March 21, 2011, of Google search results for the terms “fan-cast chocolate show” and “chocolate show fancast” that offer links to fancast.com, juxtaposed with a screenshot, dated May 3, 2011, of chocolate-related video content on fancaster.com. See (id., Ex. 36.) Fancaster also submits (1) a screenshot, dated March 21, 2011, of Google search results for the term “fancast Westminster” offering links to fancast.com, (2) a screenshot, dated September 3, 2009, of a page from fancast.com entitled “The Westminster Kennel Club Dog Show (1996-2009)” offering photos and video clips from the Westminster Kennel Club Dog Show, and (3) a screenshot, dated May 3, 2011, of short video clips related to the Westminster Kennel Club Dog Show on fancaster.com. See (id., Ex. 46.)

iii. Presence in Social Media Outlets

1.YouTube

Fancaster submits screenshots to show that both fancast.com and fancaster.com have videos posted on YouTube. Specifically, Fancaster submits screenshots, dated May 3, 2011, of video clips on www. youtube.com depicting interviews with various celebrities. See (Boudett Deel. [ECF No. 160], Ex. 47.) Those screenshots feature the FANCAST mark either in the corner of the video, the title of the video, on the background wall of the set where the video was shot, and/or on the microphone being held by the interviewer. See (id.) However, the screenshots indicate that these videos were posted under a number of different YouTube usernames. See (id.) Thus, it is unclear whether these videos were posted on YouTube by Com-cast or by individuals who culled them independently from fancast.com or another source without Comcast’s permission.

Fancaster juxtaposes these screenshots with screenshots, dated May 3, 2011, of video clips on www.youtube.com depicting a celebrity interview and groups of fans reacting to certain sporting events. See (id., Ex. 48.) As with the purported FAN-CAST videos, the fancaster videos feature the fancaster mark either in the corner of the screen or on the interviewer’s microphone. See (id.) However, In contrast to the purported FANCAST videos, the screenshots of the fancaster videos clearly indicate that they were posted by Fancaster’s YouTube channel. See (id.)

2. Faeebook

Fancaster submits screenshots of the pages that it and Comcast (FANCAST) maintain on Faeebook. See (id., Exs. 49-50.) However, the FANCAST page on Facebook advertises for “Xfinity” and directs visitors to www.xfinityTV.com. See (id., Ex. 50.)

3. Twitter

Finally, Fancaster submits screenshots of its and Fancast’s respective Twitter feeds. See (id., Exs. 51-52.) The FAN-CAST Twitter page is a trivia site. See (id., Ex. 52.)

iv. Survey Evidence

Comcast submits survey evidence to show that there is little risk of confusion between the FANCAST and fancaster marks. Specifically, Comcast submits two surveys devised by Hal Poret, a consumer perception and trademark survey expert— in March 2009 and March 2011, respectively. Mr. Poret intended for surveys to test for reverse confusion — a concept that will be discussed later in this opinion. Based on these two surveys, Mr. Poret opines “that there is no likelihood of confusion created by Comcast’s use of the mark FANCAST in connection with the Fancast website.” (Poret Decl. [ECF No. 132] ¶10.)

1. The Survey Respondents

Mr. Poret chose respondents from “[c]omsumers who use or would be likely to use the internet to view, post, or discuss sports-related content” because they constituted Fancaster’s “customers and prospective customers.” (Id. ¶ 11.) Accordingly, he narrowed the survey universe to “males and females ages 16 or older who: (a) in the past 3 months have used an internet site to view, post, or discuss sports-related content; and/or (b) in the next 3 months are likely to use an internet site to view, post, or discuss sports related content.” (Id.)

Mr. Poret sampled from this universe by utilizing interviewing facilities at shopping malls around the United States. Specifically, he chose two markets in each U.S. Census region (Northeast, South, Midwest, and West) by sampling from metropolitan areas within those regions. This sampling yielded the following markets: Chicago, Cleveland, Los Angeles, Miami, New York, Pittsburgh, Portland (OR), and Spartan-burg (SC). Mr. Poret then chose a mall in each market based on the capacity of its interviewing facilities.

2. The March 2009 Survey

The March 2009 survey used a format known as a Sequential Lineup. That format involves “first exposing respondents to the defendant’s mark prior to showing respondents the plaintiffs mark (as well as other marks), thereby simulating a scenario in which a consumer comes to learn about defendant’s mark and then encounters plaintiffs mark.” (Id. ¶ 28.) Out of 419 qualified respondents, Mr. Poret randomly assigned 209 to a Test Group and 210 to a Control Group. Each respondent in the Test Group was shown a three-page printout of www.fancast.com. The printout was taken away and the “[r]espondents were then instructed that they were going to be shown some websites and asked some questions.” (Id. ¶ 33.) “One at a time, respondents were then shown and asked about four websites: (a) Fancaster.com; (b) Veoh.com; (c) Musicvideocast.com; and (d) Tvfanonline.com.” (Id. ¶ 34.) In contrast to the printout if the FANCAST website, these websites were shown to respondents as static screenshots on a computer screen.

Respondents were not only shown fan-caster.com after viewing the fancast.com printout because, according to Mr. Poret, “[s]howing respondents plaintiffs service as but one of a number of services in a series created as close to a realistic consumer experience as possible.” (Id. ¶ 35.) Thus, Veoh.com, Musicvideocast.com, and Tvfanonline.com were shown in addition to Fancaster.com because “they all permit users to view, post and/or discuss various forms of media-related content.” (Id.) “Tvfanonline.com and Musicvideocast.com were specifically included because they are examples of the many websites that contain superficial name elements in common with [Lancaster (‘fan’ and ‘cast’ respectively) but do not come close to being confusingly similar.” (Id.)

Upon seeing each of the four websites, the Test Group respondents were asked whether they believed the given website and the printout were from (1) the “same company”, (2) “different companies”, or (3) whether they had no opinion. (Id. ¶ 36.) “Respondents who answered ‘same company5 were asked what made them think so.” (Id.) “Respondents who did not answer ‘same company5 were asked a second question, namely, whether the company the current website is from is affiliated with or received authorization from the company the printed-out website is from.” (Id. ¶ 37.) “Respondents who answered ‘yes5 were asked what made them think so.” (Id.) This series of questions was given for each website. Mr. Poret then tallied the total number of respondents who said that fancaster was from or affiliated with the same company as FANCAST.

The same procedure was performed on the Control Group, except that group was shown a control website instead of the FANCAST website that was shown to the Test Group. The Control Group was intended “to measure the tendency of respondents to connect Comcast’s website with [fjancaster for reasons unrelated to Plaintiffs claims of infringement, including the possibility that respondents drew a connection between two websites merely because they both have “Fan” in the name.” (Id. ¶ 41.) The control website presented the same content and format as the Fancast website, however, the FAN-CAST name was changed to FAN-WATCH. According to Mr. Poret, “[t]he Fanwatch page is an appropriate control because it left the content, format and overall image of the Fancast page the same, while changing the name to one that is clearly non-infringing and would not be confused with Fancaster.” (Id.) Therefore, he maintains, “any difference in the Test and Control Results must be attributed to ... the substitution of the ‘watch’ suffix for‘cast’”. (Id. ¶42.)

Of the 209 respondents in the Test Group, 65 (81.1%) made a connection between Fancast and Fancaster. Of these 65, 21 (10% of the Test Group) indicated the similarity between the Fancast and Fancaster names for doing so. Of the 210 respondents in the Control Group, 61(29%) made a connection between Fancaster and Fanwatch. Of those 61, 18 (8.6% of the Control Group) indicated the similarity between the Fancaster and Fanwatch names for doing so. Mr. Poret called this figure the “total noise level.” (Id. ¶ 62.) Mr. Poret subtracted the alleged 29% noise from the 31.1% Test Group confusion, amounting to a final potential confusion level of 2.1%. According to Mr. Poret, this figure “indicates that the tendency of respondents to connect Fancaster to Fancast is no greater than the baseline level of survey noise, and [therefore] that the likelihood of real consumers confusing the two services due to name similarity is none or negligible.” (Id. ¶ 63.) Mr. Poret also found that “the connection between Fan-caster and Fancast due to name similarity is actually no higher than the level of survey noise — i.e., the tendency of respondents in a survey to make a connection between names that have a superficial common element (“Fan”) but clearly do not infringe.” (Id. ¶ 65.) Finally Mr. Poret found that “the 31.1% rate at which Test Group respondents connected Fan-cast and Fancaster is statistically equivalent to the rate at which they connected Fancast to the other websites shown in the study: Musicvideocast (27.3%), Tvfanonline.com (33.0%) and Veoh (22.0%) .... [and that] [t]his further confirms that the Test Group result for Fancaster does not rise above the level of typical survey noise.” (Id. ¶ 66.)

3. ■ The March 2011 Survey

In contrast to the March 2009 survey’s Sequential Lineup format, the March 2011 used an Eveready format, under which “respondents are exposed only to use of one party’s mark and are asked questions to see whether they confuse it with the other party’s mark.” (Id. ¶ 27.) “In the context of reverse confusion, an Eveready survey involves exposing respondents to the senior user’s mark to determine whether it is mistakenly connected to the infringing junior user.” (Id.) Mr. Poret chose the Eveready format instead of the Sequential Lineup format for the March 2011 survey because, at that time, “the Fancast service had been in existence for an additional two plus years and consumers should therefore have had ample opportunity to become aware of the FAN-CAST mark.” (Id. ¶ 29.)

209 respondents participated in the March 2011 survey. Instead of a printout, they were first “shown the current, live [Lancaster web site (starting on the home page) and asked to take as much time as they needed to review it.” (Id. ¶45.) They were also given a mouse and allowed to click around any section of the website. “Respondents were then asked whether they had an opinion about what company the website they just saw is from.” (Id. ¶ 46.) “Respondents who did have an opinion were asked what company the website is from, and what made them think so.” (Id.)

“Respondents were next asked whether they think the company the website comes from provides any other services or operates any other websites.” (Id. ¶ 47.) “Respondents who answered in the affirmative were asked to identify any such services or websites and to give their reasons for why they think such services or websites are provided or operated by the company whose website they were shown.” (Id.) “Finally, respondents were asked whether they think the company whose website they were shown is affiliated with or received authorization from any other company, and what makes them think so.” (Id. ¶ 48.)

Of the 209 respondents, just two “(slightly under 1%) gave an answer indicating possible confusion with Comcast or Fancast in response to any survey question.” (Id. ¶ 67.) According to Mr. Poret, this figure “is well within the range of typical survey noise.” (Id. ¶ 69.) In contrast, “[a] total of 52 respondents (approximately 25%) answered that the website shown to them comes from ‘[f]ancaster.’” (MU68.)

F. Evidence of Damages

Fancaster retained Weston Anson, chairman of an intellectual asset consulting firm that specializes in licensing, valuation, and expert services, for the sole purpose of “determin[ing] the level of corrective advertising expenditures needed” to cure any consumer confusion between FANCAST and fancaster. (Sarowitz Decl. [ECF No. 137], Ex. 11.) After reviewing various Comcast records, Mr. Anson found that, as of March 24, 2011, Comcast spent $83,067,778 in marketing and advertising the FANCAST mark. (Id.) Mr. Anson further found that Comcast spent an addition $200,000,000 in advertising and marketing “to promote Xfinity TV that featured or displayed the Fancast Brand, and drove traffic to Fancast.com, either indirectly or though Xfinity and/or Comcast websites.” (Id.)

Based on his experience in branding and advertising, Mr. Anson opined that “it will take at least one year’s of Comcast[’s] average annual advertising expenditures to correct any inaccurate impressions in the marketplace.” (Id.) Mr. Anson thus arrived at a “reasonable estimate” of $73,163,977 owed to Fancaster in corrective advertising expenditures to “rebuild the goodwill that has been destroyed by Comcast.” (Id.) Specifically, based on Fancaster’s involvement in “broadcasting on low-power networks in stadiums and sporting events, [ ] covering events of general interest ... SMS texting and broadcasting via partnerships with several major entities ... Fancaster had existing goodwill and the potential to build new goodwill but for Comcast’s actions.” (Id.) However, Mr. Anson testified that the proposed figure of $78,163,977 was based entirely on Comcast’s advertising expenditures, and that the fancaster mark’s goodwill “doesn’t have any bearing on the amount of corrective advertising.” See (Sarowitz Decl. [ECF No. 137], Ex. 5.)

Indeed, Mr. Anson foresees a “substantial amount of advertising” to regain this goodwill, including national advertising on television, the Internet, and in print. (Id.) This is so that Fancaster can compete with Comcast’s “Faneast/Xfinity behemoth” and “level the playing field.” (Id.) To be sure, Mr. Anson assumes that Comcast and Fancaster compete in the same digital media market, which also includes websites like hulu.com and TV.com, and therefore discusses the methods and costs of advertising in that market.

II. DISCUSSION

Comcast now moves for summary judgment on all of Fancaster’s claims. In doing so, it argues that (1) there is no likelihood of confusion between the FANCAST and fancaster marks, and (2) Fancaster is not entitled to corrective advertising damages. Fancaster moves for summary judgment on Comcast’s claims for fraud on the PTO and cyber piracy. In doing so, it argues that (1) there is no evidence of fraudulent intent, and (2) Fancaster’s valid trademark registration of the fancaster mark and registering “fancast” doman names before the launch of fancast.com suggests good faith in registering those domain names.

The parties also move to exclude certain evidence from the record. Specifically, Comcast moves to exclude the testimony of Fancaster’s damages expert, Weston An-son, arguing that (1) he did not employ a reliable methodology in opining that Fan-caster is entitled to corrective advertising damages, (2) he applied that methodology in a speculative manner, (3) his report and testimony do not fit the facts of this case, and (4) permitting him to testify on the damages in this case would be prejudicial to Comcast. Fancaster moves to exclude the testimony and surveys conducted by Mr. Poret, arguing that he used unreliable methods in conducting the surveys and that those methods do not fit the facts of this case. Fancaster also moves to exclude the reports and testimony of Com-cast’s PTO and cyber piracy experts, Gary Krugman and Greg Lastowka, arguing that they usurp the role of the Court in opining on several legal issues in this case.

Finally, Fancaster moves to strike the affirmative defenses of fraud, unclean hands, laches, and acquiescence from the pleadings, arguing that there is no evidence that (1) it unreasonably delayed commencement of this lawsuit; (2) it acquiesced in Comcast’s infringement; or (3) Comcast relied upon its actions and has been prejudiced as a result of such reliance.

A. Standard of Review

Summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(a). For an issue to be genuine, there must be “a sufficient evidentiarybasis on which a reasonable jury could find for the non-moving party.” Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir.2006). For a fact to be material, it must have the ability to “affect the outcome of the suit under governing law.” Id. Disputes over irrelevant or unnecessary facts will not preclude granting summary judgment.

The party moving for summary judgment has the burden of showing that no genuine dispute of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When the moving party does not bear the burden of proof at trial, it may discharge its burden under the summary judgment standard by showing that there is an absence of evidence to support the nonmoving party’s case. Id. at 325, 106 S.Ct. 2548. If the moving party can make such a showing, then the burden shifts to the non-moving party to present evidence that a genuine factual dispute exists and a trial is necessary. Id. at 324, 106 S.Ct. 2548. In meeting its burden, the non-moving party must offer specific facts that establish a material dispute, not simply create “some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In deciding whether an issue of material fact exists, the Court must consider all facts and their reasonable inferences in the light most favorable to the non-moving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). The Court’s function, however, is not to weigh the evidence and rule on the truth of the matter, but rather to determine whether there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If there are no issues that require a trial, then judgment as a matter of law is appropriate. Id. at 251-52, 106 S.Ct. 2505. “Failure to strictly observe the principles governing summary judgment becomes particularly significant in a trademark or tradename action, where summary judgments are the exception.” Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 (3d Cir.2006) (quotations and citation omitted).

B. Fancaster’s Motions in Limine

Before dealing with the substantive claims in this case, the Court will first address the two motions in limine submitted by Fancaster in order to properly define the scope of the record for summary judgment. Fancaster moves to (1) exclude the expert testimony of Hal Poret and the two surveys conducted by him, and (2) exclude the testimony of Gary Krugman and Greg Lastowka.

Rule 702 governs the admissibility of expert testimony. It allows a qualified individual who possesses “scientific, technical, or other specialized knowledge” to testify as an expert if “it will assist the trier of fact to understand the evidence or to determine a fact in issue.” FRE 702. A witness may be qualified by “knowledge, skill, experience, training, or education.” Id. The expert may offer his or her opinion on matters outside the scope of his personal knowledge only if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” FRE 702. Put another way, “Rule 702 has three major requirements: (1) the proffered witness must be an expert, i.e., must be qualified; (2) the expert must testify about matters requiring scientific, technical or specialized knowledge; and (8) the expert’s testimony must assist the trier of fact.” Pineda v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir.2008).

The “proponent of expert testimony must establish his expert is qualified and his testimony is admissible by a preponderance of the evidence.” Poust v. Huntleigh Healthcare, 998 F.Supp. 478, 490 (D.N.J.1998). The Court has an obligation to act as a “gatekeeper” to ensure the “reliability and relevancy of expert testimony” presented to the finder of fact. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); See also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 592-593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

To aid in this inquiry, Daubert and United States v. Downing, 753 F.2d 1224 (3d Cir.1985), cite several factors for the Court to consider in examining the expert’s methodology: “(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualification of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put.” In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 742 (3d Cir.1994) citing Daubert and United States v. Downing, 753 F.2d 1224 (3d Cir.1985).

i. Motion to Exclude Hal Poret’s Surveys and Testimony

Fancaster argues that the methodologies of the surveys conducted by Mr. Poret are flawed to the point that they and Mr. Poret’s testimony relating to those surveys should be excluded from the record. In the context of survey evidence, “mere technical flaws” in methodology go to “the weight accorded a survey, not its admissibility.” Citizens Financial Grp., Inc. v. Citizens Nat’l Bank of Evans City, 383 F.3d 110, 121 (3d Cir.2004); see also In Re Paoli, 35 F.3d at 744 (“The judge might think that there are good grounds for an expert’s conclusion even if the judge thinks that there are better grounds for some alternative conclusion, and even if the judge thinks that a scientist’s methodology has some flaws such that if they had been corrected, the scientist would have reached a different result.”). However, “fatal flaws” in a survey’s methodology merit its exclusion. Citizens Financial Grp., 383 F.3d at 121; see also In Re Paoli, 35 F.3d at 746 (“The judge should only exclude the evidence of the flaw is large enough that the expert lacks ‘good grounds’ for his or her conclusions.”). Fancaster argues that Mr. Poret’s surveys are “fundamentally flawed in several different ways” that merit their exclusion. (PI. Br. [ECF No. 145] 4.) The Court will address each alleged flaw in turn.

1. The Surveys’ Universe

Fancaster contends that the surveys’ universe was flawed in that it (1) only focused on sports fans, as opposed to sports, movie, and music fans, (2) ignored Fancaster’s initial target of 18-35 year old males, and (3) improperly surveyed participants nationwide because Comcast offers its services only in certain markets. Com-cast argues that the surveys properly (1) limited participants to sports fans because Fancaster focuses on sports-related content, (2) included both men and women because both men and women are part of Fancaster’s target audience, and (3) included participants nationwide because both fancaster.com and fancast.com are available nation-wide and Fancaster targeted consumers nationwide.

A proper survey universe is “ ‘that segment of the population whose perceptions and state of mind are relevant to the issues in the case.’ ” Citizens Financial Grp., 383 F.3d at 118-19 (quoting 6 McCarthy on Trademarks and Unfair Competition § 32:159 (4th ed. 2003)). “ ‘A survey of the wrong universe -will be of little probative value in litigation.’” Id. The party offering the survey evidence bears the burden of proving that the universe is proper. Id.

Here, it is undisputed that the likelihood of confusion alleged by Fancaster is “reverse confusion.” In contrast to cases of “forward confusion” where “the new or junior user of the mark will use to its advantage the reputation and good will of the senior user by adopting a similar or identical mark ... [rjeverse confusion occurs when a larger, more powerful company uses the trademark of a smaller, less powerful senior owner and thereby causes likely confusion as to the source of the senior user’s goods or services.” Fisons Horticulture Inc. v. Vigoro Indus., Inc., 30 F.3d 466, 474 (3d Cir.1994). In other words, Fancaster’s theory of confusion is that Comcast — a much larger, more powerful company that Fancaster — likely caused confusion as to the source of the fancaster mark and fancaster.com’s services as a result of its use of the FAN-CAST mark.

In a case claiming forward confusion, “the proper universe to survey is the potential buyers of the junior user’s goods or services.” 6 McCarthy § 32:159 (4th ed. 2011) (emphasis in original). In contrast, “the universe in a reverse confusion case should be limited to the senior user’s customer base.” Citizens Financial Grp., 383 F.3d at 119 (citing McCarthy § 32:159).

In both the March 2009 and March 2011 surveys, Mr. Poret sampled from a universe of “males and females ages 16 or older who: (a) in the past 3 months have used an internet site to view, post, or discuss sports-related content; and/or (b) in the next 3 months are likely to use an internet site to view, post, or discuss sports related content.” (Poret Decl. [ECF No. 132] ¶ 11.) It was entirely appropriate for Mr. Poret to sample from sports fans for the March 2009 survey because Fancaster was focused on sports-related content at that time. Indeed, Fan-caster’s October 2009 business plan states that “[t]he target market initially will be sports fans.” (Dickstein Decl. [ECF No. 130], Ex. 13 at 4.) To be sure, the plan also states that Fancaster planned an “expansion of its offerings to include both music and movie fans at later stages.” (Id.) However, this does not affect the validity of the universe chosen for the March 2009 survey because the proper universe was Fancaster’s actual — i.e., not intended or future — customer base at that time. See Citizens Financial Grp., 383 F.3d at 119.

It was similarly appropriate for Mr. Poret to sample from sports fans for the March 2011 survey because Fancaster maintained its sports focus up to and beyond that point. As of April 21, 2011, the vast majority of video clips and video categories on faneaster.com were sports-related. See (Dickstein Decl. [ECF No. 130], Ex. 17.) In addition, as of that same date, the vast majority of the 120 most-viewed videos on the site were sports-related. See (Dickstein Decl. [ECF No. 165], Ex. 3.)

Fancaster’s argument that the surveys improperly sampled from both males and females is also unpersuasive. While Fan-caster’s October 2009 business plan states that, “[f]or sports fans, Fancaster intends to focus on the ever-capricious but nonetheless influential demographic of 18-to-35 year old males” (Dickstein Decl. [ECF No. 130], Ex. 13 at 4), as previously discussed, the proper survey universe in the reverse confusion context is Fancaster’s actual, not intended, customer base at the time of the survey. See Citizens Financial Grp., 383 F.3d at 119. To that effect, Mr. Krueger testified that Fancaster was “targeting [a] younger ... probably a little male-driven” audience “anywhere from 12 years old to 40 years old ... although we have a lot of women who love Fancaster.” (Dickstein Decl. [ECF No. 165], Ex. 7.) Thus, Mr. Poret’s sampling of both men and women does not amount to a fatal flaw that merits exclusion of the surveys.

Finally, Fancaster’s argument that it was improper for Mr. Poret to sample nationwide because Comcast does not maintain a nationwide footprint is irrelevant because, as previously discussed, the proper survey universe in this case is Fan-caster’s actual customer base, not Corn-cast’s. See Citizens Financial Grp., 383 F.3d at 119. Fancaster’s damages expert, Weston Anson, testified that Mr. Krueger told him that Fancaster has a nationwide customer base. See (Dickstein Decl. [ECF No. 165], Ex. 8.) (“[M]ost of [Fancaster’s] audience comes from the East Coast, down through the Carolinas, the upper Midwest, including Dakotas and Iowa, Kansas, and on then the West Coast, California, and I assume perhaps, Washington and Oregon. That’s my understanding ... I believe Mr. Krueger did tell me that, yes.”) Therefore, Mr. Poret’s use of nationwide sampling methods is not a fatal flaw that merits exclusion of the surveys.

2. Use of Non-Probability Mall Intercept Surveys

Fancaster argues that Mr. Poret, in his report, improperly extrapolated the results of both surveys to the general population. Specifically, Fancaster contends that Mr. Poret’s conclusion “that there is no likelihood of confusion created by Comcast’s use of the FANCAST mark in connection with the Fancast website” (Poret Decl. [ECF No. 132] ¶ 10) is unfounded because the results of non-probability surveys, such as the ones used by Mr. Poret, cannot be reliably extrapolated to the survey universe. Comcast maintains that this does not merit exclusion because non-probability surveys have long been held to be admissible evidence in trademark cases.

Fancaster cites authority from this court stating that non-probability surveys “are weak evidence of behavior patterns in the test universe.” Prince Mfg., Inc. v. Bard Int’l Assoc., No. 88-3816, 1988 WL 142407, *8 (D.N.J. Dec. 22, 1988) (quoting Am. Home Prods. Corp. v. Barr Labs., Inc., 656 F.Supp. 1058, 1070 (D.N.J.1987)); see also Boehringer Ingelheim G.m.b.H v. Phar madyne Labs., 532 F.Supp. 1040, 1053 (D.N.J.1980) (“Because the survey was not a probability sample, the results cannot be statistically extrapolated to the universe.”). However, this ■ court has also noted that “[m]all intercept studies have been accepted by this court and others, despite their lack of projectability.” Tyco Indus., Inc. v. Lego Sys., Inc., No. 84-3201, 1987 WL 44363, *25 (D.N.J. Aug. 26, 1987); see also Boehringer Ingelheim, 532 F.Supp. at 1053 n. 17 (“[S]urveys can be reliable even if not based on a probability sample.”). Thus, the fact that a survey was based on a non-probability sample goes to its weight, not its admissibility.

3. The March 2009 Survey

Fancaster contends that the March 2009 survey was fatally flawed because it “bore no resemblance whatsoever to marketplace conditions, in many respects.” (PI. Br. [ECF No. 145] 18). Professor McCarthy writes: “the closer the survey methods mirror the situation in which the ordinary person would encounter the trademark, the greater the evidentiary weight of the survey results.” 6 McCarthy on Trademarks and Unfair Competition § 32:163 (4th ed. 2011). “Although no survey can construct a perfect replica of ‘real world’ buying patterns, a survey must use a stimulus that, at a minimum, tests for confusion by roughly simulating marketplace conditions.” Troublé v. Wet Seal, 179 F.Supp.2d 291, 308 (S.D.N.Y.2001). Indeed, A survey must be “designed to examine the impression presented to the consumer by the accused product. Therefore, [it] must use the proper stimulus, one that tests for confusion by replicating marketplace conditions.” Conopco, Inc. v. Cosmair, Inc., 49 F.Supp.2d 242, 253 (S.D.N.Y.1999). Accordingly, the results of a survey that does not adequately simulate how a consumer would encounter a trademark are neither reliable nor probative.

Fancaster advances several ways in which the March 2009 survey fails to reflect marketplace conditions, only one of which need be addressed by the Court: that Mr. Poret used a printout and static screenshots of the fancast.com fancaster.com homepages instead of live versions of those websites. Mr. Poret’s use of a printout and static screenshots, instead of live websites, provide ample grounds on which to exclude the March 2009 survey. For one, it is difficult to fathom how presenting a respondent with a paper printout of the FANCAST homepage in anyway replicates how an Internet user would encounter and perceive the FANCAST website in the marketplace. Websites, particularly those that offer video content, are meant to be viewed on a computer and allow consumers to browse and interact with them via hyperlinks. The FANCAST printout offered none of these aspects. Similarly, although viewed on a computer, the static screenshots of the fancaster and control website homepages did not allow respondents to interact with them as they ordinarily would in the marketplace.

Comcast’s contends that the printout and static screenshots “provided a representative snapshot of the content available on the sites.” (Def. Br. [ECF No. 166] 19.) This contention is unavailing. While an image of a website’s homepage may accurately summarize the nature of its content and services, it cannot meaningfully test for confusion if it is not presented in the way that an Internet user would actually encounter it. See 6 McCarthy § 32:163. Notably, in his March 2011 survey, Mr. Poret presented respondents with a live version of the fancaster website and allowed them to browse it on a computer, and Comcast presents no reason why it would have been any less appropriate or practicable to do so in the context of the March 2009 survey. Accordingly, this methodology deprives the Mai’ch 2009 of reliability and therefore merits its exclusion as well as exclusion of any testimony related thereto.

4. The March 2011 Survey

Fancaster argues that it was improper for Mr. Poret to use an Eveready survey in March 2011 because there is no evidence that its respondents had been exposed to the FANCAST mark. Comcast contends that (1) there is ample evidence that FANCAST mark had saturated the marketplace, and (2) any lack of awareness of the FANCAST mark merely cuts against Fancaster’s claim of reverse confusion.

“[A] survey cannot be run in a reverse confusion case prior to the junior user’s saturation of the market with its mark because, until that time, consumers have not been exposed to the relatively large advertising and promotion of the junior user that is the hallmark of a reverse confusion case.” 4 McCarthy on Trademark and Unfair Competition § 23:10 (4th ed. 2011); see also CIT Group, Inc. v. Citicorp, 20 F.Supp.2d 775, 792 (D.N.J.1998) (“It is Professor McCarthy’s opinion that surveys ... [i]n a situation where the junior user [] has not yet commenced massive use of its name and there has been no advertising or promotion of products and services under that name reverse confusion cannot be measured because the triggering event of market place saturation has not yet occurred.”). Thus, market saturation by a junior user is highly probative of exposure to the junior user’s mark. See A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 224 (3d Cir.2000) (money spent on advertising a mark is “clearly relevant” to consumer recognition of that mark.)

The record indicates that Comcast had launched a substantial nationwide advertising campaign for FANCAST in print, television, and online media. See (Young Decl. [ECF No. 131] ¶ 4-6.) In addition, in September 2009, Mr. Krueger testified that he believed Fancast.com to be “one of the top websites in the world” based on several “measurement sites that are publicly available on the internet and track the top web sites in the world,” and that Com-cast had “done a pretty good job of saturating the market.” (Dickstein Decl. [ECF No. 165], Ex. 7.) Thus, by March 2011, shortly before Comcast dismantled the FANCAST website, Comcast had saturated the market.

Fancaster contends that, despite this market saturation, a substantial segment of respondents to the March 2011 survey had no exposure to FANCAST because they resided outside of Comcast’s territorial footprint. This contention is unavailing because the FANCAST website was available to anyone with an Internet connection, and Comcast was marketing it to consumers both in and outside of its footprint. See (Young Decl. [ECF No. 131], Ex. 2 at COMCAST00136.) To be sure, in late 2009, the FANCAST website began offering certain content t