Full opinion text
AMENDED OPINION AND ORDER SHIRA A. SCHEINDLIN, District Judge. I. INTRODUCTION 1. This is a trademark infringement case between two global fashion companies. On May 6, 2009, Gucci America, Inc. (“Gucci”) filed a complaint against Guess?, Inc. (“Guess”), Marc Fisher Footwear LLC (“MFF”), the Max Leather Group/Cipriani Accessories, Inc. (“Max Leather/Cipriani”), Sequel AG (“Sequel”), K & M Associates L.P. (“K & M”), Viva Optique, Inc. (“Viva”), Signal Products, Inc. (“Signal”), and Swank, Inc. (“Swank”) (collectively “Defendants”), pursuant to Section 1114 and 1125 of Title 15 of the United States Code, Section 360 — Z of the New York General Business Law, and the common law of New York. Gucci claims that Defendants have infringed or counterfeited four of its trademarks, and one trade dress on over one thousand stock keeping units (“SKUs”) in an attempt to “Gucei-fy” their product line: 1) the Green-Red-Green Stripe mark (“GRG Stripe”); 2) the Repeating GG Pattern, 3) the Diamond Motif Trade Dress, which is the Repeating GG Pattern with a pair of inverted Gs in each corner rendered in a brown/beige col- or combination, 4) the Stylized G Design mark (“Stylized G”), and 5) the Script Gucci Design mark (“Script Gucci”). Gucci also seeks cancellation of Guess’s “4G Square Repeating Logo” trademark on the basis of abandonment. 2. Defendants answered the Second Amended Complaint on June 3, 2010, denying all of Gucci’s claims, while also raising more than a dozen affirmative defenses as well as a counterclaim seeking partial cancellation of the Gucci Stylized G registration on the basis of abandonment. Gucci answered and denied the counterclaim on June 23, 2010. 3. On February 14, 2012, I held that Gucci was not entitled to monetary' relief on its dilution claims relating to Defendants’ use of the Square G mark and Quattro G Repeating Pattern, and granted Defendants partial summary judgment on those claims. 4. I held a bench trial from March 28, 2012 to April 19, 2012. The parties submitted post-trial proposed findings of fact and conclusions of law on April 27, 2012. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, I make the following findings of fact and conclusions of law. In reaching these findings and conclusions, I heard the evidence, observed the demeanor of the witnesses, and considered the arguments and submissions of counsel. 5. Due to certain mathematical errors and oversights in identifying infringing styles, the Court is revising its original opinion to adjust the damage award. However, the legal analysis is unchanged from the initial Opinion and Order. Accordingly, the original opinion is now withdrawn and replaced by this Amended Opinion and Order. II. FINDINGS OF FACT A. Parties 6. Gucci is organized under the laws of New York, with its principal place of business located at 685 Fifth Avenue, New York, New York. 7. Guess is a organized under the laws of Delaware, with its principal place of business at 1444 South Alameda Street, Los Angeles, California. 8. MFF is organized under the laws of Delaware in 2004. Its principal place of business is located at 777 Putnam Road, Greenwich, Connecticut. It also maintains a showroom at 725 Fifth Avenue, New York, New York and a distribution center in Edison, New Jersey. 9. Max Leather/Cipriani is organized under the laws of New York. Its principal place of business is located at 366 Fifth Avenue, New York, New York. 10. Signal is organized under the laws of California. Its principal place of business is located at 320 West 31st Street, Los Angeles, California. 11. Swank is organized under the laws of Delaware. Its principal place of business is located at 90 Park Avenue, New York, New York. B. History of the Brands 1. Guess 12. Guess was founded in 1981 by the Brothers Marciano-Georges, Maurice, Paul, and Armand. Over the next three decades, it grew into an internationally recognized brand. 13. Guess sells branded apparel and accessories, both on its own and with select licensees. It operates hundreds of its own retail stores, and places its products in more than one thousand department stores nationwide. 14. Guess has developed a distinctive and unique brand image over the past thirty years. It has established itself as a mid-market lifestyle brand, somewhere below the “haute couture” fashion houses, but nonetheless above low-end retail discounters like Target or Wal-Mart. 15. The ideal Guess customer is the “Guess Girl,” a brand-conscious young woman between the ages of fifteen and thirty who identifies with the sexy, trendy, flashy image of the Guess brand. She is willing to pay a premium above unbranded products to display that image through Guess-branded products. 16. Between 2008 and 2010 alone, Defendants spent more than ninety million dollars advertising the Guess brand in various media channels, including magazines such as Vogue, Vanity Fair, In Style, Allure, Elle, and People, as well as billboards and buses. 17. The Guess style makes frequent use of “loud” colors, exaggerated fabric details, and embellishments such as rhinestones. These act as indicators that Guess is the source of the product. Based on the results of surveys conducted by Women’s Wear Daily identifying the thirty most well-known brands, consumers understand that the Guess brand and style is not the same as Gucci’s. The Guess brand has come to be identified with such celebrity “Guess Girls” as Anna Nicole Smith and Claudia Scheiffer. 2. Gucci 18. Guccio Gucci established his eponymous brand in Florence, Italy in 1921. In the decades that followed, Gucci became famous for its fine leather goods, and then built on its reputation to become one of the largest luxury goods, fashion and accessory brands in the world. 19. Gucci opened its pioneering New York City store in 1953, introducing Americans to Italian fashion. Since then it has expanded its presence into twenty-two states and now operates more than ninety U.S. stores. Over the years it has sold under the Gucci brand name everything from watches to cars. 20. Gucci considers the designs at issue in this case to be among its “icons,” and places them on products to enable its customers to communicate that they are members of the “exclusive club” that the Gucci brand signifies. Over the past twenty years, seventy-five percent of the products have borne at least one of these designs. Sales data show that they are tremendously successful, with approximately $1.3 billion worth of product sold between 2004 and 2009 alone. 21. In addition to “lifestyle” consumers — wealthy individuals who wear Gucci products regularly — Gucci also targets “aspirational” consumers, who are younger and less wealthy, but nonetheless aspire to the exclusivity that the Gucci brand represents. Because these consumers are less well-off than the “lifestyle” consumer, they tend to purchase Gucci’s more popularly priced articles, such as canvas products bearing the Diamond Motif Trade Dress and/or the Repeating GG Pattern. 22. Gucci spends millions of dollars on advertising each year, including more than twenty million dollars in the period from 2001 to 2009 on the marks at issue. It advertises in fashion magazines such as Vogue, Vanity Fair, and Elle, as well as “lifestyle” magazines like Town & Country, and even teen-oriented magazines such as Lucky or Teen Vogue, all in an effort to reach a broad range of consumers. 23. In addition to magazine and newspaper ads, Gucci advertises on billboards, on buses, in malls, and in a variety of online media. It also receives unpaid editorial coverage in the fashion press, which a third-party service assessed at a value of approximately twenty-five million dollars per year for the period from 2006 to 2009. Additional media exposure comes from celebrities ranging from Charlize Theron to Nicole “Snooki” Polizzi, who are often photographed wearing Gucci products. 24. As a result of its advertising and commercial success, Gucci is consistently recognized as one of the top luxury brands in the world by a variety of publications. It has also been recognized as one of the top global brands, irrespective of “luxury” status. C. The Marks at Issue 25. As noted above, this case involves five Gucci designs: the GRG Stripe, the Repeating GG Pattern (along with the Diamond Motif Trade Dress), the Stylized G, and the Script Gucci. Gucci imposes strict quality standards on all of its products, including those bearing these marks. Over the years, it has vigorously enforced its trademark rights, with a particular focus on the problem of counterfeiting. 1. The GRG Stripe . [1] 26. Gucci has used the GRG Stripe since the 1960s. It consists of outside green stripes flanking a center stripe rendered in red. Gucci obtained registrations for the GRG Stripe in 1979 (for handbags, luggage, small leather goods, and the like) and in 1988 (for footwear). 27. The GRG Stripe has appeared on approximately twenty percent of all Gucci accessories in the past two decades. From 2005 to 2009, sales of such products totaled approximately $250 million. During the nine-year period beginning in 2001 and ending in 2009, Gucci spent approximately $8.7 million on advertisements that featured the GRG Stripe. 28. At trial and during depositions, Defendants acknowledged that the GRG Stipe is a key identifier of Gucci. Gucci also views the GRG Stripe as an essential part of its brand image. 29. Based on its extensive nationwide sales and publicity, its recognition as an identifier of Gucci, and the fact that it was first registered more than. thirty years ago, I find that the GRG Stripe is a famous mark within the meaning of the Trademark Dilution Revision Act (“TDRA”) of 2006. 2. The Repeating GG Pattern and the Diamond Motif Trade Dress 30. Gucci has used the Repeating GG Pattern — a pair of inward facing, inverted G’s set at the corners of a repeating, diamond-shaped pattern connected by two dots forming straight diagonal lines— since 1966. Gucci obtained a registration for this design in 2003 (for jewelry) and 2006 (for handbags, luggage, small leather goods, neckties, scarves, footwear, etc.). The Diamond Motif Trade Dress is this pattern executed on canvas in a brown/ beige colorway, with pinpoint “shading” within the Gs. Products bearing the Diamond Motif Trade Dress account for approximately eighty percent of canvas products bearing the Repeating GG Pattern. 31. Gucci has sold billions of dollars worth of products bearing the Repeating GG Pattern/Diamond Motif Trade Dress. It has become a key visual identifier for Gucci, and one that it believes motivates customers to buy other Gucci products. To support sales of products with these marks, Gucci spent more than thirteen million dollars on advertising in the U.S. between 2001 and 2009. 32. At trial and during depositions, Defendants acknowledged that the Repeating GG Pattern is a key identifier of Gucci that transmits the brand’s characteristic qualities of heritage, quality, and exclusivity. Because of the mark’s popularity, Gucci merchandisers spend more than half of their accessory budget on products bearing the Repeating GG Pattern or the Diamond Motif Trade Dress. 33. For the same reasons as noted in the discussion of the GRG Stripe in paragraph 29 above, I find that the Repeating GG Pattern is a famous mark within the meaning of the TDRA. While the Diamond Motif Trade Dress is not registered, I find that the other factors weigh sufficiently in Gucci’s favor to support a finding that it, too, is famous. 3. The Stylized G 34. Gucci began using the Stylized G in 1994. It obtained U.S. trademark registrations in 1997 (for handbags, belts, gloves), 1999 (for watches and clocks) and 2006 (for eyeglass frames and sunglasses). 35. From 2004 through 2009, Gucci sold approximately fifteen million dollars worth of products bearing the Stylized G, combined wholesale and retail Over the period from 2001 to 2009, it spent approximately $1.3 million advertising such products in the U.S. 36. Gucci increased its use of the Stylized G in 1995 and 1996, and the mark became the focus of an entire ready-to-wear collection in 1998. However, after a controversial, pornographic advertisement created by Tom Ford featuring the Stylized G ran in Spring 2003, Gucci scaled back on its use. Nonetheless, Gucci witnesses testified at trial that it still uses the Stylized G on the interior of handbags, as well as on belts and wallets. 37. As discussed in paragraph 78 below, Guess designed it own Square G at some time during 1995, and first used it in commerce in 1996, if not earlier. At that time, Gucci had not yet registered the Stylized G in the U.S., and it had only sold and advertised it for a few years at most. Furthermore, Gucci has not shown that consumers actually recognized the Stylized G as an indicator of Gucci. Accordingly, even if the Stylized G did eventually become famous, I find that it was not famous when Guess commenced use of its Square G in 1996. 4. The Script Gucci 38. The Script Gucci mark was developed from the signature of Guccio Gucci, the brand’s founder. Gucci began using the mark in 1967 and has used it ever since. Gucci obtained a U.S. trademark registration for this mark in 2006 for use on various kinds of bags and cases. Gucci does not have a registration for the mark for use on footwear. 39. Approximately five percent of all Gucci products sold in the last two decades have borne the Script Gucci Mark. Gucci sold fifty-eight million dollars worth of products bearing this mark at retail between 2004 and 2009. For the period from 2005 to 2009, it sold $195 million at wholesale. Over the period from 2001 to 2009, Gucci spent approximately $450,000 on advertisements visibly featuring the mark. 40. As discussed in more detail in the Conclusions of Law below, I do not reach the question of whether the Script Gucci mark is famous because I find that, even if it were famous, the Script Guess mark does not dilute it, either by tarnishment or by blurring. D. Defendants’ Design Processes 41. Guess uses various licensees to produce its accessory products. In anticipation of each selling “season,” Guess’s in-house design team researches trends in the fashion industry, and creates apparel designs consistent with the carefully cultivated Guess brand. Guess’s in-house counsel checks these designs for compliance with intellectual property laws. 42. Guess provides its licensees with “trend inspiration” via semi-annual trend design meetings. At these meetings, Guess distributes “trend design books” that include cuttings from magazines, trend watch services, and the results of shopping trips, amongst other things, all in an attempt to create a cohesive look and feel across all Guess-branded products. Guess’s reliance on these materials shows that it is a trend follower, not a trend leader. 43. The accessory licensees use the trend design materials as a starting point for their own design process, which culminates in products that Guess reviews and approves for aesthetics and brand cohesion. Guess’s licensing department monitors the licensees’ products and works with them to achieve a consistent and coherent style for each season. This department is also responsible for monitoring the licensees’ use and modification of Guess’s intellectual property, including its trademarks and signature logos. However, due to the small volume of sales for men’s footwear, the Guess men’s buying team handled this review process for that category from 2007 to 2010. 44. After designs are approved, the licensees produce sample products for physical review, resulting in approval, rejection, or requests for modification. These “line reviews” are typically attended by Mr. Paul Marciano and at least one member of the Guess licensing department. As in the preliminary approval stages, the focus is on brand cohesion and aesthetics. 45. Due to the volume of products involved, Guess does not individually clear each approved product for intellectual property conflicts. Instead, the licensees are obligated to do so by the terms of their licensing agreements. Nonetheless, Guess’s licensing department will raise issues with Guess’s legal department if it thinks any of the products come too close to the intellectual property of another brand. By way of example, approximately fifty designs were brought to the attention of the legal department in 2011, approximately twenty percent of which were disapproved on intellectual property grounds. 46. Despite these efforts, Guess does not have an unblemished record when it comes to complying with intellectual property laws. During the last decade, Guess has received approximately one dozen trademark complaints from other fashion companies complaining about Guess products that allegedly infringed on the trademark rights of the senior user. In each instance, Guess either immediately stopped using the mark or amicably resolved the matter with the competitor. 47. Guess has also frequently received complaints about footwear products developed by MFF. From October 2007 to August 2008, either Guess or MFF received four cease-and-desist letters from national brands including Jimmy Choo, Coach, Adidas, and Yves Saint Laurent. Guess warned MFF that this was unacceptable and claims to have sent a license agreement violation letter, but was unable to produce it during discovery or trial. Guess also did nothing to follow up on its demand that MFF put an effective intellectual property clearance procedure into place. 48. Like Gucci, Guess actively protects its intellectual property rights, using more than one hundred law firms to do so. By way of example, Guess has enforced its registered Quattro G Pattern against such companies as Aldo and Wal-Mart. Guess also works with U.S. Customs and Border Protection to prevent counterfeits from entering the country. E. Development of the Allegedly Infringing Guess Marks 49. Gucci asserts that Guess and its Licensees “knowingly and slavishly replieat[ed] Gucci’s world famous design elements and designations [in order to] take advantage of the markets and demand Gucci has created for such designs without having to incur the developmental, promotional and advertising expenses that Gucci has incurred.” In order to determine whether Gucci has proved this allegation, I must examine each mark in turn. 1. Defendants’ Use of the GRG Stripe 50. Seven men’s shoe models designed and manufactured by MFF in 2008 bore a GRG Stripe. Prior to that time, there is no evidence that Guess or any of its Licensees used a GRG Stripe on any other category of products, whether it be apparel, handbags, belts, wallets, or shoes. 51. Ample evidence shows that the GRG Stripe on these shoes was intentionally copied from Gucci. In a November 20, 2007 e-mail discussing the Melrose 2 men’s shoe, Jury Artola — assistant to the head designer of men’s footwear, Paul Vando — instructed MFF’s manufacturer that the striping detail should be “Green/ Red/Green like the GUCCI....” On May 2, 2008, Vando instructed his factory to “please reference the GUCCI sneaker” for the stripe color of one shoe, and that the “webbing whould [sic] be Green/Red/ Green as on [the Gucci] sample.” The very next day, when discussing the Deacon men’s shoe, Vando instructed his sample manufacturer to “follow the Gucci colorway” for the GRG Stripe, and even offered to follow up by sending a Gucci shoe as an example. 52. With respect to the Melrose men’s shoe, Marciano admitted at trial that it was too close to the Gucci shoe that “inspired” it, and that he would have brought it to the attention of the legal department had he seen it beforehand. Marc Fisher, CEO of MFF, made similar admissions, with particular reference to the Mette shoe style. 53. Departing from the standard “trend inspiration” process, the evidence shows that MFF used individual Gucci products to create Guess-branded shoes bearing the GRG Stripe on several occasions. Indeed, in at least one case, MFF included a picture of a Gucci shoe on a “spec sheet” that it sent to its factory, which was intended to describe the shoe in great detail. 54. In November 2008, a Guess-branded shoe with the GRG Stripe came to the attention of Theresa McManus, Senior Intellectual Property Counsel at Guess. In response, she sent an e-mail to MFF’s outside counsel, instructing MFF to stop using the “Gucci red and green ribbon detail found in the Mette style.” Although Gucci had not complained about the footwear, McManus immediately ordered the shoes withdrawn from Guess’s website and stores. 55. Nonetheless, a Gucci investigator was able to purchase a Guess shoe bearing the GRG Stripe on November 29, 2008, more than a week after McManus’s recall instructions went out. Indeed, on December 8, 2008 — more than two weeks after the recall was ordered, MFF’s CFO told McManus that MFF intended to continue production and sale of GRG Stripe shoes at wholesale. The next day, MFF instructed its factory to make a “running change” to a brown-red-brown stripe on the advice of McManus. 56. Despite its apparent agreement to stop using the GRG Stripe on shoes, MFF continued to ship such shoes until February or March 2009. Mark Parsley — Vice President of Sales for MFF’s men’s division — testified that MFF did so because it had not yet received shoes with the modified stripe from its factory, and in order to preserve delicate customer relationships in a highly competitive marketplace. 57. The evidence also shows that third-party retailers were still selling shoes bearing the GRG Stripe in April 2009. McManus was unable to explain why this was so, and testified that Guess left the task of third-party recalls to MFF. There is also evidence indicating that at least three shoes bearing the GRG Stripe were not fully removed from Guess’s own e-commerce site until June 2009. 58. Based on the foregoing, I find that MFF intentionally copied the GRG Stripe from Gucci, and that Guess’s licensing department approved of its use on men’s shoes designed by MFF despite recognizing the GRG Stripe as an identifier of Gucci. Nonetheless, I find that Guess’s recall of products bearing the GRG Stripe design — imperfect as it may have been— when they came to the attention of its legal department is indicative of its good faith. Because MFF made the conscious decision to continue shipping and selling shoes after it was directed to stop doing so, I find that it acted in bad faith. 59. I further find that a brown/ red/brown stripe is visually dissimilar from the GRG Stripe and will not cause confusion, even in the post-sale context. Gucci has produced no evidence of actual confusion or association stemming from Guess’s use of a brown/red/brown stripe, either through anecdotal consumer complaints or survey evidence. 2. Guess’s Use of the Quattro G Pattern 60. The use of all-over logo patterns is common in the fashion industry, especially on handbags. Such logos are often based on initials of the brand. Examples include Fendi, Michael Kors, Givenchy, Coach, and Louis Vuitton. 61. Guess had used several different logos by the early-to mid-2000’s, when the logo trend began to pick up steam. In 2003, in order to capitalize on the logo trend, a designer at Guess began experimenting with multiple G logos, eventually coming up with the standalone Quattro G. There is no evidence that he referenced or copied Gucci or any other company in doing so. Marciano liked the design and personally approved it. 62. Later that year, Guess engaged outside counsel — the Los Angeles firm of Christie, Parker, and Hale — to register the standalone Quattro G design as a trademark in a vertical orientation. Gucci did not oppose or object to Guess’s application for the standalone Quattro G trademark, and Gucci does not contend that the standalone Quattro G infringes any Gucci mark. 63. In late 2003, the same designer used the standalone Quattro G to develop various patterns. Eventually, Guess selected a pattern with the Quattro G rotated 45 degrees clockwise and surrounded by a stitched diamond-shaped border without G’s in the corners. Guess sought a registration for this mark in 2004. However, the accompanying artwork depicted the design in a square shape rather than a diamond, and did not mention that it would be a repeating pattern. 64. Prior to applying for registration, McManus — who had recently graduated from law school — conducted a trademark search, through which she determined that Gucci’s Repeating GG Pattern was registered only for use on jewelry. Other registrations for use on handbags, belts, and footwear had expired as of 2003. It was not until September 2004 that Gucci applied to reactivate its lapsed Repeating GG Pattern registrations, which did not reissue until 2006. 65. Several Guess witnesses testified that they had never seen the Quattro G Pattern used in a square orientation without Gs in the corners, and that Guess never intended that use. Nonetheless, after having seen the Gucci Repeating GG Pattern registration, McManus registered the Quattro G Pattern, which consisted of the standalone mark “bordered by a square composed of a dashed line.” At trial, she gave conflicting reasons for why she did so. First, she testified that the vertical/square orientation was selected in order to achieve maximum protection against infringers. Later, she testified that the orientation of the mark and the orientation of the border was “irrelevant” to the scope of protection afforded by the registration. 66. The evidence shows that the PTO Examiner did not limit his comparative search to repeating square patterns. Instead, as explained by Guess’s expert Gary Krugman, and as indicated by the Examiner’s notes on file at the PTO, he performed a comparative search for registered trademarks bearing a “G” or “GG.” However, the entry in the Official Gazette did not mention Gs in the corner or a diamond-shaped pattern, making it less likely that the application would come to Gucci’s attention. 67. The history of the application in the PTO is also somewhat suspect. Originally, the Examiner rejected the application based on the finding that the Quattro G Pattern was merely ornamental. Months later, Guess argued that the pattern was either inherently distinctive, or that it had acquired distinctiveness through secondary meaning. The Examiner rejected this argument and noted that the pattern as described “does not appear on any of applicant’s evidence.” Three weeks later, however, the Examiner reversed himself and accepted the mark for registration. At trial, Krugman said that he was told by Guess’s counsel the day before his testimony that this reversal was a result of a phone call to the Examiner by Guess’s counsel. 68. Based on all of the foregoing and the other evidence in the record, I find that Guess described the Quattro G Pattern as a square in order to avoid having the Repeating GG Pattern cited against its application, and in order to prevent Gucci from taking notice of the application when it was published for opposition. 69. Guess first provided the Quattro G Pattern fabric to Signal in 2004. According to Suesan Faulkner, Creative Director at Signal, the corner Gs all faced in the same direction and were then noticeably smaller than those in the standalone Quattro G. However, when the pattern was first used in the Spring of 2005 in the “Quatro [sic] G” collection, it was already altered so that every other row of Gs was inverted and turned backwards. After Lori Becker of MFF complained to Guess’s licensing department in early 2005 that she had received both versions of the pattern, she was told to use the modified version, and that the change was made for technical and aesthetic reasons. 70. As can be seen in the “Quatro G” handbag group from 2005, the Quattro G Pattern did not originally feature a two-tone weave or use shading inside the G’s. In order to achieve a two-tone woven canvas look and a brown-beige color scheme, Becker sent clippings of Gucci fabrics to Claser, its Italian fabric agent, in April 2006. When she received “as Gucci” fabrics back from Claser in May 2006, all of the Gs were shaded in. 71. Ringwood, who spearheaded the effort to create the two-tone weave, and who prepared dozens of detailed specifications for women’s shoes using the Quattro G Pattern, testified that she never noticed the shading in the Gs until the legal proceedings began. Likewise, Marc Fisher, who has ultimate responsible for the design of women’s shoes at his namesake company, testified that he never focused on the shading. The testimony of these witnesses on this subject is not credible. 72. After MFF began using the Quattro G Pattern with shading in the Gs, Stephane Labelle of Guess Europe instructed Faulkner to use the same fabric in order to co-ordinate with MFF. Faulkner then used the fabric in several handbag groups. 73. The Quattro G Pattern on a two-tone brown/beige canvas with shading in the Gs was so successful that Guess’s licensing department arranged for Guess’s wallet and belt licensees to begin using the fabric. Ultimately, the Quattro G Pattern — with and without shading — was a hit, and Guess used it across various styles of handbags and shoes for several seasons. 74. The evidence also shows that Guess and its licensees attempted to replicate other features of the Gucci fabric. For example, in September 2006, Ringwood asked Claser to replicate a Gucci embossing technique, and Joy Kramer of Guess’s licensing department asked for a swatch of the resulting fabric to share with the licensees. E-mail records show that Signal was attempting to copy the Gucci brown/ beige color scheme, of which Jason Rimokh — CEO of Signal — testified that he was enamored. MFF tried to replicate other Gucci colors on several occasions in 2008, while both Signal and MFF attempted to mimic coatings used on Gucci fabrics. 75. On several occasions, individuals associated with Guess and its licensees noted that the Quattro G Pattern looked similar to Gucci. For example, Kramer of Guess’s licensing department stated in a June 2006 e-mail noted that a Guess shoe with the Quattro G Pattern with shading “looks so similar to Gucci but it is nice....” Richard Danderline, the former CFO of MFF, wrote to another MFF executive in June 2008 that “the ‘quattro G’ pattern is pretty close to the Gucci pattern.” He also forwarded the design to outside counsel for review, but MFF asserted attorney-client privilege over the response. At his deposition, Danderline admitted that the Quattro G Pattern and the Repeating GG Pattern were similar from “a layman’s perspective.” 76. On the basis of the foregoing and other evidence in the record, I find that Guess intended to copy the upscale look of the Repeating GG Pattern and the Diamond Motif Trade Dress. This was intended to make the customer happy by giving him or her “the feeling of having something ‘designer-ish’ without it being the actual one, just similar.” 3. Guess’s Use of a Square G 77. Guess first sold products bearing the Square G in 1996. Based on the design-to-market time line, this means that it developed the Square G at some point during 1995. Additionally, the evidence shows that Guess has used square-shaped Gs in its name since the 1980s. Nothing in the record shows that Guess ever referenced Gucci in developing this mark. 78. Guess sold more than 4.2 million units of products bearing allegedly-infringing variants of the Square G. Between 1999 and 2001 alone, the mark appeared on approximately fifty handbag style groups offered for sale. According to Guess witnesses, this means that handbags with Square G designs would have been available in nearly every one of Guess’s 1400 then-existing distribution points in the United States. 79. Gucci asserts that a wide variety of square- or rectangle-shaped Gs used by Defendants infringe on the registered Stylized G. After exhaustively reviewing the photos and exemplars of accused products submitted post-trial, I find that only three Guess-branded products bear a Square G that is substantially identical in shape, such that they will convey the same overall commercial impression as the Stylized G: the belt with SKU number 913019, the Misty shoe, and the Scraps shoe. While the Square Gs on the shoes have the word “Guess” on them, I find that a casual observer in a typical post-sale setting is not likely to notice such markings. 80. The remainder of the Square Gs do not convey the same overall commercial impression as the Stylized G for at least two reasons. First, the majority of them are not the same shape as the Stylized G, either because they are elongated, have non-uniform vertical and horizontal line widths, or have a tab extending downward from the top horizontal line. Second, a large percentage of the Square Gs have rhinestones and other adornments not present on the Stylized G. 81. Based on the forgoing and other evidence in the record, I find that Guess did not act in bad faith in the development or sale of products bearing any Square G design. I also find that those Square G’s that are substantially identical in overall appearance to the Stylized G were not intentionally copied from Gucci, but merely happened to use the same minimally-stylized shape as found in the Stylized G. 4. Guess’s Use of the Script Guess Mark 82. It is undisputed that Guess has announced its brand name in a script-font on products since the early 1980s. It is also undisputed that Guess has used a “loop” in the letter “G” at the beginning of the Guess name and/or an underline under the Guess name since the same time. Gucci concedes that the complained-of Script Guess mark, depicted below, is the only allegedly infringing mark, and that it was not used until 2008. Gucci admits that without the “iconic underlining,” the Script Guess would not infringe its trademark Script Gucci. Allegedly Infringing Script Guess (2008) 83. Faulkner testified that she developed the Script Guess logo by referencing previous script-font Guess logos, as well as 1950s era collegiate-style fonts on various products from other brands. I find this testimony credible. 84. Gucci charges that Marciano’s purchase of the book “Gucci by Gucci” in 2006 contradicts Ms. Faulkner and shows that the Script Guess was copied from the Script Gucci. Marciano, however, testified that he never showed Faulkner the book, or directed anyone to use it as a source of design inspiration. This testimony is also credible. 85. Furthermore, after careful consideration of the two marks, by themselves and on products, on physical specimens and in representative photographs, from various distances and different angles, I find that the two marks are decidedly dissimilar, and that they do not create the same overall commercial impression. Rather, I find that the complained-of Script Guess creates the same overall commercial impression as the non-infringing script-font “Guess” logos that Guess has used for the past three decades. 86. Viewing all the evidence, I find that Guess did not copy Script Gucci — intentionally or otherwise — and that Guess did not intend to deceive consumers as to the source of products bearing the Script Guess. I also note that Gucci introduced no evidence of confusion, either via survey or in any other way. F. Gucci’s Knowledge of Guess’s Use of the Allegedly Infringing Marks 87. Guess introduced overwhelming evidence of its open, pervasive, and continuous promotion, sale, and advertising of its branded products, including millions of products bearing one or more of the marks at issue in this case. Indeed, from 2008 to 2010, Guess sold nearly seven million units of accused products, for an average of nearly one million accused products per year. 88. Many of Guess’s stores are located near Gucci stores; in some instances, they are even in the same mall. Guess prominently displayed its products — including allegedly infringing products — at these stores. Allegedly infringing products were also openly for sale through Guess’s website, and the websites of third-party retailers. 89. Gucci and Guess both have large advertising budgets, and the evidence shows that they often advertise in the same magazines. At trial, Christine Iacuzzo — Gucci’s Director of Advertising — admitted that Gucci specifically monitored where Guess placed advertisements, and that some of those advertisements featured the designs at issue in this case. For example, Gucci and Guess both ran advertisements in Elle in August 2005, in Interview in December 2005/January 2006, and Allure in April 2007. Daniella Vi-tale — Gucci’s former CEO — also testified to a similar effect. Nonetheless, Vitale insisted that she was unaware of any issue regarding the Guess products at issue in this case until 2008. This testimony is not credible. 90. When pressed at trial, Vitale could not offer any explanation as to why not a single Gucci employee had ever notified any Gucci executive or attorney with concerns about the allegedly infringing Guess products. Jonathan Moss — former Legal Counsel for Gucci — similarly testified that he did not recall knowing anything about Guess’s use of the allegedly infringing marks until 2006, although he has a remarkably clear memory of the events surrounding Guess’s use of the word “twirl” to describe a watch. He also testified that he was not aware of “any conduct on Guess’s part that [he] deemed worthy of a response by Gucci America.” His testimony on these matters is not credible. 91. Moss and Vitale both testified that their concerns about Guess did not begin until they visited a mall in Paramus, New Jersey, where they were considering opening a Gucci store. While at the mall, they went into a Guess store, where they claimed to have seen five hundred SKUs of alleged Gucci knock-offs. Nevertheless, Gucci elected not to send a cease and desist letter to Guess and waited fourteen months before filing this lawsuit. 92. When asked at trial why Gucci allowed Guess to sell so many products Gucci claimed were harming its brand, Moss responded that the reason was “budgetary,” and that the majority of Gucci’s legal budget was taken up by combating counterfeiters. This was corroborated by Milton Springut (outside IP counsel for Gucci from 1984 to 2007), who testified that he never provided legal advice concerning possible infringement by Guess because such issues never arose, despite employing a team of investigators nationwide, including in cities where Guess had stores. 93. Gucci’s behavior with respect to Guess is not consistent with its conduct towards other brands. Over the years, Gucci has sent out hundreds of cease and desists letters to entities ranging from national companies such as Bebe, Juicy Couture, and Williams-Sonoma, all the way to small-time infringers, such as a counterfeiter working out of her Los Angeles apartment and a rabbi in New York, who they suspected might sell counterfeit Gucci products to benefit his synagogue. 94. In addition to the incident involving the Guess “twirl” watch noted above, the evidence also shows that Moss discussed products that Gucci has put at issue in this case in 2006 and 2007. Despite his clear memory of the “twirl” incident, Moss testified that he could not recall these emails or the surrounding circumstances at trial. This testimony is not credible. 95. In light of the foregoing, and all the other evidence admitted at trial, I find that Gucci knew or should have known about Guess’s use of the Quattro G Pattern by 2006 at the very latest. It should have known about Guess’s use of the Square G before 2000. While the particular complained-of Script Guess mark was not used until 2008, Gucci should have been aware of highly similar Script Guess marks in the 1990s, if not the 1980s. 96. As a result of Gucci’s delay in bringing suit or otherwise contacting Guess about its infringement concerns, I find that Guess has suffered evidentiary prejudice in the following ways: 1) It has no sales records before 2004, either for its own sales or for Gucci’s. 2) It has lost evidence to corroborate the earliest uses of the Square G recalled by its witnesses. 3) It has lost details about the early development of the Quattro G Pattern. 4) It has been unable to interview witnesses due to their death or departure from the companies. 97. However, I find that Guess will not be prejudiced if it is prevented from using any of the allegedly infringing marks. It has already begun using the Quattro G Pattern without G’s in the corners — about which Gucci does not complain — without any ill effect. As noted above, it has also ceased using the GRG Stripe. Furthermore, Faulkner testified that if she were forced to stop using the Square G, any harm would be minimal since she would have many other G designs to choose from. Additionally, the data show that the accused products make up roughly one percent of Guess’s overall business, and no more than eight percent of the business of any given licensed. G. Expert Testimony 98. Plaintiff and Defendants both called expert witnesses on various topics. Guess called Gabrielle Goldaper to testify about the design process in the fashion industry, while MFF called Bonnie Smith on the design processes specific to footwear. On confusion, Gucci called George Mantis as a survey expert, while Guess called Dr. Shari Diamond and Dr. Carol Scott. On dilution, Gucci called Dr. Michael Mazis as a survey expert to explain association, and Dr. Michel Pham to discuss blurring and tarnishment, while Guess called Professor Mark McKenna to rebut Dr. Pham. Finally, Gucci called Basil Imburgia as a damages expert, while Guess called Dr. Alan Goedde and MFF called Ronald Vollmar. Although some of these experts have been mentioned above, I make specific findings as to each group in detail below. 1. Design Process Experts 99. Smith and Goldaper testified that copying the designs of other companies is accepted practice in the fashion world. Both also testified as to the importance of following trends. While the law allows emulation of successful product features in order to spur competition and benefit consumers, it prohibits emulation from crossing over into copying that causes consumer confusion. Accordingly, Goldaper and Smith, if anything, add support to the finding that I have already made above, namely, that Guess and its licensees crossed the line and intentionally copied certain Gucci designs. However, the fact that Guess and its licensees acted according to accepted industry practices does not mean that they acted in good faith, or that their actions are permissible under New York or Federal trademark laws. 2. Confusion Experts 100. In support of its trade dress infringement claim, Gucci submitted the Mantis survey, which tested a Guess men’s cross-body bag using the Quattro G Pattern executed in a brown/beige colorway. The survey claims to find a net confusion level of 15.6%. 101. The Court originally excluded this survey due to a variety of flaws, but then admitted it upon reconsideration on the narrow issue “of post-sale consumer confusion allegedly caused by Guess Quattro G bags in those post-sale situations where the casual observer will not see” Guess ornamentation. Based on the observational study by Guess’s expert Dr. Carol Scott, I find that thirty-seven percent of women, at most, carry handbags on which no source-identifying ornamentation can be seen in the post-sale context, either because it does not exist or is obscured by the way in which the handbag is held. Combining Mantis’s survey with Scott’s study, I find that the maximum level of confusion amongst casual observers in the post-sale setting is 5.8 percent. 102. In addition to the flaws identified in the Daubert opinion, testimony at trial revealed several other reasons to give reduced weight to the conclusions in the Mantis survey. First, he tested a cross-body bag, even though cross-body bags represented a maximum of three percent of bags sold during the period for which Gucci claims damages. Second, the results of his survey cannot be extrapolated to bags in other eolorways, which account for more than seventy-five percent of Guess-branded bags bearing the Quattro G Pattern. Third, it is unreasonable to apply Mantis’s findings to those bags that feature the “slightly garish kind of hardware” and loud coloration that are key features of the Guess brand. 103. Based on the foregoing, I find that the Mantis Survey — when viewed in light of the Scott observational study and the testimony of all the confusion experts at trial — is not entitled to significant weight, and therefore provides only weak evidence in support of Gucci’s trade dress claims. I also find that it provides no evidence to support Gucci’s confusion claims based on the Repeating GG Pattern rendered in alternative colorways. 3. Dilution Experts 104. In support of its dilution claim, Gucci submitted a survey by Dr. Mazis that claims to show a twelve percent level of a likelihood of association between Guess’s Quattro G Pattern on a beige background and Gucci. At trial, Dr. Diamond criticized the Mazis Survey for asking what “products or brands” came to mind, instead of merely “what came to mind.” According to Dr. Diamond, this led consumers to mention brands and products, instead of giving “top of mind” responses. 105. Dr. Mazis was also criticized for not using multiple controls to parse out the various elements of the trade dress. At trial, Dr. Mazis explained that he did not use multiple controls because he was testing the effect of a combination of elements, rather than each element discretely. I find this testimony credible. While multipie controls may have been helpful in further parsing the results Dr. Mazis found, his failure to use them does not affect the validity of his results. 106. Based on the forgoing, I find that Dr. Mazis’s survey — while somewhat flawed because it used questions that primed respondents to answer with brands and products — -provides valid, relevant evidence as to the likelihood that consumers will associate the Quattro G Pattern with Gucci when rendered in a brown/beige colorway. 107. Dr. Pham testified as to the potential blurring or tarnishment that Guess’s use of the accused marks would cause to Gucci. He did so on a brand-wide basis instead of doing a mark7by-mark analysis. 108. Dr. Pham’s analysis is based solely on general propositions derived from marketing research literature, rather than specific studies of consumer attitudes regarding the Gucci marks and Diamond Motif Trade Dress. Dr. Pham’s opinions do not rely on any real-world evidence of any purported blurring or tarnishment of the Gucci marks or the Gucci brand. Accordingly, although he is well-qualified, and although his testimony was forthright and credible, I find that Dr. Pham’s testimony — even if fully credited — insufficient to establish that the Gucci marks have experienced or are likely to experience any blurring or tarnishment. 4. Damages Experts — Profits from Accused SKUs 109. All three damages experts agree that profits are properly determined by deducting costs incurred and attributable to the design, manufacture, and sale of the accused products. The experts disagree, however, about which costs have a nexus sufficient to justify such deductions from profits. a. Profits for All Defendants Except MFF 110. Based on information obtained from Defendants, Imburgia determined that Defendants sold over $204 million worth of products bearing the accused designs, resulting in profits of approximately eighty million dollars. He reached this profit figure by deducting costs that he could determine had a close nexus to the design, manufacture, and sale of the products using the data available to him. 111. Dr. Goedde also did a profits calculation for Defendants. However, his nexus analysis was cursory, and not explained in a satisfactory manner. I find that Dr. Goedde did no real nexus analysis, but simply decided to deduct all company costs, which he admitted to doing on several occasions. Accordingly, I find that Dr. Goedde’s opinions are not reliable evidence of what costs ought to be deducted from Defendants’ revenue figures. 112. The only other evidence in the record regarding potential deductions to be taken against Defendants’ sales of accused products comes from percipient witnesses. On behalf of Max Leather/Cipriani, Steve Kahn admitted that he took the same approach as Dr. Goedde — namely, deducting every single business expense incurred. Also, like Dr. Goedde, he then allocated these costs to the accused SKUs based on the percentage of overall sales represented by those SKUs. 113. On behalf of Swank, Inc., Jerold Kassner also testified that his approach was similar to that of Mr. Kahn and Dr. Goedde. While he deducted merchandise costs and royalty payments on an SKU-specific basis, he deducted all other general business expenses on an allocation basis. Russell Bowers, on behalf of Guess, testified that he did the same thing. 114. For the same reason that Dr. Goedde’s nexus analysis is unreliable, the calculations of Kahn, Kassner, and Bowers are as well. However, Imburgia agreed with Bowers’s nexus analysis as it related to “store occupancy” costs. 115. After deducting “store occupancy” costs from Imburgia’s analysis, I find that Guess sold $79,822,325 of accused products, and earned a net profit of $41,978,543; it also received a total of $10,807,966 from all of its non-footwear licensees combined. Swank sold $193,894 for a profit of $66,459. Max Leather/Cipriani sold $4,016,682 for a profit of $1,361,904, while Signal sold $94,787,324 for a profit of $22,431,158. 116. However, for the reasons discussed in the Conclusions of Law below, I find that Gucci is not entitled to profits from every allegedly infringing SKU. Instead, I find that it is entitled to profits only to those SKUs listed in Appendix A to this opinion. Using the figures Imburgia provided on June 13, 2012 at my request, I find that: (1) Signal sold $7,956,486 of infringing products, resulting in a net profit of $1,834,503; (2) Max Leather/Cipriani sold $71,558 of infringing products, resulting in a net profit of $24,701; and (3) Swank sold $56,396 of infringing products, resulting in a net profit of $18,791. I also find that Guess’s non-footwear licensees paid it $805,886 in royalties on sales of infringing products. Further, based on figures Guess provided on June 13, 2012 at my request, I find that Guess realized a profit of $202,598 on its retail sales of infringing belts, wallets and footwear. 117. Because Guess did not maintain records of retail sales of handbags broken down by color, its profits from retail sales of infringing handbags cannot be calculated with precision. However, as discussed in the Conclusions of Law below, this number may be approximated by: (1) examining images of products offered for sale on Guess’s retail website over time; (2) determining how many of the SKUs listed in Appendix A were sold on Guess’s website; (3) computing the ratio of Signal’s sales of the product in each infringing color to Signal’s overall sales of the product; and (4) applying that ratio to Guess’s retail sales. I have examined images of products offered for sale on Guess’s retail website and determined that fifty-three (53) of the handbags listed in Appendix A were sold on Guess’s website. Based on the method of calculation I just described, I calculate Guess’s retail profits from sales of those fifty-three handbags to be $1,018,591. b. Profits for MFF 118. Vollmar agreed with all of the deductions that Imburgia made. However, because he had more information than Imburgia, he was able to determine that several categories of costs that Imburgia did not deduct in fact met Imburgia’s criteria for deduction. Accordingly, he deducted several more categories that he was able to determine had a close nexus to the design, manufacture, and sale of accused shoes. 119. Gucci argues that Vollmar’s calculations, while methodologically sound, should be disregarded because he relied on preliminary data rather than actual MFF financial documents. However, Vollmar testified at trial that he has since reviewed those documents, and that his analysis remains unchanged with one exception — he no longer believes “deferred key money” has a sufficient nexus to the design, manufacture, and sale of accused MFF shoes, and therefore no longer deducts it. With this correction made, Vollmar’s figures show that MFF’s profits from the accused SKUs was $8,250,255 for the period 2005 through 2010 on sales of $23,523,619. Imburgia’s profit figure is $4,988,903. Based on the final list of SKUs at issue — after accounting for those dismissed at trial and those dismissed by agreement between the parities — Imburgia’s final revised profit total is $3,272,152. Vollmar’s final revised figure — based oh the SKU-by-SKU data he submitted at my request on May 9, 2012— is $2,056,020 on sales of $14,584,747. 120. As with Guess and the other licensees, however, I find that Gucci is not entitled to MFF’s profits for every SKU it put in issue. Instead, only those listed in Appendix B to this opinion are infringing, for the reasons explained in the Conclusions of Law below. Using the figures Vollmar provided on June 13, 2012 at my request, I find that MFF sold $3,603,220 of infringing products bearing the Quattro G Pattern, of which it paid a royalty of $252,225 to Guess and retained a profit of $427,834. I find that MFF sold $241,042 of infringing products bearing only the GRG Stripe, of which it paid a royalty of $16,873 to Guess and retained a profit of $28,349. c. Damages Experts — Reasonable Royalty as Actual Damages 121. Imburgia proposed a hypothetical royalty as a measure of Gucci’s actual damages in lieu of making any showing of lost sales or profits. Imburgia admitted that any such royalty should be “economically reasonable” to both the licensor and the licensee. 122. Matteo Mascazinni, Gucci’s Chief Operation Officer, stated that a royalty agreement would “never be advantageous” to Gucci. To the extent that the hypothetical royalty is based on Gucci producing a lower-priced “diffusion” line — for example, “Gucci Designs by Guess” — the evidence shows that Gucci would never do so. Guess’s current licensees testified that it would not make economic sense for them either. 123. In addition to the parties’s admitted unwillingness to enter into this hypothetical royalty agreement, the speculative nature of Imburgia’s analysis is further evinced by two more facts. First, Imburgia assumed, without factual support, that Guess’s current licensees would to sell the exact same products at a premium, even if they only licensed the Gucci design marks and not the Gucci name. Second, he did not take into account the possibility that Guess’s current licensees could easily avoid paying the royalty by making minor changes to their designs, such as eliminating the underline on the Script Guess or removing the Gs from the corners of the Quattro G Pattern. 124. In view of the foregoing and all the other evidence in the record, I find that Imburgia’s hypothetical royalty analysis is highly speculative, and entitled to no weight. III. APPLICABLE LAW 1. Gucci seeks injunctive relief and damages for Defendants’ alleged acts of trademark infringement, trademark counterfeiting, trade dress infringement, false designation of origin, trademark dilution and unfair competition, in violation of the Lanham Act and New York law. Gucci further seeks cancellation of Guess’s Quattro G trademark registration (U.S. Trademark Reg. No. 3,308,152) due to abandonment. 2. Guess asserts various affirmative defenses, as well as a counterclaim for cancellation of Gucci’s Trademark Registration for the Stylized G. A. Trademark Infringement 3. Gucci’s infringement claims relate to its registered Repeating GG Pattern, GRG Stripe, Script Gucci, and Stylized G trademarks (the “Registered Gucci Trademarks”) and its unregistered Diamond Motif Trade Dress. 4. Trademark infringement claims are “analyzed under [a] familiar two-prong test....” This test “looks first to whether the plaintiffs mark is entitled to protection, and second to whether defendant’s use of the mark is likely to cause consumer confusion as to the origin or sponsorship of the defendant’s goods.” The latter inquiry “turns on whether ‘numerous ordinary prudent purchasers are likely to be misled or confused as to the source of the product in question because of the entrance in the marketplace of defendant’s mark.’ ” 5. In order to succeed on its claim of trade dress infringement under Section 43(a) of the Lanham Act, Gucci must demonstrate (i) that the Diamond Motif Trade Dress has acquired distinctiveness through secondary meaning; (ii) that there is a likelihood of confusion between Defendants’ trade dress and Gucci’s; and (iii) that the trade dress is non-functional. 6. “[A] probability of confusion, not a mere possibility, must be found to exist” in order to support a finding of infringement. Generally speaking, establishing that probability is the plaintiffs burden, which means that the defendant typically does not need to disprove a likelihood of confusion. 7. In this case, Gucci’s infringement claims are premised solely on post-sale confusion. This type of confusion occurs when “a potential purchaser, knowing that the public is likely to be confused or deceived by the allegedly infringing product, will choose to purchase that product instead of a genuine one in order to gain the same prestige at a lower price.” In other words, the harm that is addressed by post-sale confusion claims is not a misdirected purchase, but a purchase intended to confuse. 8. As with point-of-sale confusion, a post-sale confusion plaintiff must still establish a likelihood of confusion among an appreciable number of post-sale observers, taking into account all the vagaries involved with post-sale observation. Indeed, the fact that post-sale observers are removed from purchasing decisions makes post-sale trademark cases inherently difficult to prove, speculative, and subject to increased scrutiny. 9. “Courts in the Second Circuit look to all of the traditional Polaroid factors in analyzing claims of post-sale confusion.” These factors are described below: (1) Strength of the Plaintiffs Mark: “The strength of a particular mark ... is measured by its distinctiveness or the degree to which it indicates the source as origin of the product,” and should be examined in its commercial context. As noted above, minimally stylized “basics” — such as letters or geometrical shapes — will only be entitled to “thin” protection, even if they are “strong” marks. (2) Similarity of Plaintiff’s and Defendant’s Marks: This is judged by “considering] all factors that could reasonably be expected to be perceived by and remembered” by members of the relevant population. In the post-sale setting, two marks will be considered similar if they create the same overall commercial impression when viewed serially, taking into account the various contexts in which the post-sale casual observer is likely to encounter them. (3) Competitive Proximity of the Products: This is measured by “the nature of the products themselves and the structure of the relevant market,” and must be viewed in light of the first two Polaroid factors. That is, as the strength of the senior mark increases, and as the junior mark becomes more similar, the competitive proximity decreases. (4) Bridging the Gap: This factor addresses the question of “whether the two companies are likely to compete directly in the same market.” Where the companies target the same customers, there is no gap to bridge, and this factor leans in favor of the plaintiff. (5) Actual confusion: Evidence of actual confusion in the post-sale context is particularly difficult to come by. The