Pinterest, Inc. v. Pintrips, Inc. (140 F. Supp. 3d 997, 2015)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HAYWOOD S. GILLIAM, JR., United States District Judge

I. INTRODUCTION

In this case, Plaintiff and Counter-Defendant Pinterest, Inc. (“Pinterest”) alleges that its rights to its “Pinterest,” “Pin,” and “Pin It” word marks are infringed by the “Pintrips” and “Pin” word marks used by Defendant and Counter-Plaintiff Pin-trips, Inc. (“Pintrips”). Pinterest asserts five causes of action: (1) federal trademark infringement under the Lanham Act, 15 U.S.C. § 1114; (2) false designation of origin under 15 U.S.C. § 1125(a); (3) trademark dilution under 15 U.S.C. § 1125(c); (4) unfair competition under Cal. Bus. & Prof. Code § 17200; and (5) trademark dilution under Cal. Bus. & Prof. Code § 14247. Pinterest asks the Court to permanently enjoin Pintrips from using the Pintrips and pin marks. For its part, Pin-trips seeks a declaration from the Court that its use of the Pintrips and pin marks does not infringe, as well as an order cancelling Pinterest’s pin registrations (at least in part) if those registrations are construed to prohibit the manner in which Pintrips uses the term.

This matter was tried to the Court, sitting without a jury, from May 18, 2015 to May 27, 2015. On July 3, 2015, the parties submitted post-trial briefs, see Dkt. Nos. 251 (“PI. Br.”) and 248 (“Def. Br.”),' and Proposed Findings of Fact and Conclusions of Law, see Dkt. Nos. 250 (“PI. FFCL”) and 249 (“Def. FFCL”). The parties filed reply briefs three weeks later. See Dkt. Nos. 254 (“PI. Reply Br.”) and 253 (“Def. Reply Br.”). Closing arguments were heard August 28, 2015. The Court has carefully considered the evidence presented at trial, the exhibits admitted into evidence, the parties’ briefs, and the arguments of counsel. This memorandum opinion will constitute the Court’s Findings of Fact and Conclusions of Law.

II. JURISDICTION

The Court has original jurisdiction under 15 U.S.C. § 1121 (claims arising under the Lanham Act), as well as 28 U.S.C. §§ 1331, 1338, and 1367(a). Venue is proper in this district pursuant to 28 U.S.C. § 1391(b) because the parties reside in this judicial district and a substantial portion of the events giving rise to this action occurred here.

III. BACKGROUND

A. Pinterest

Launched in March of 2010, the Pinter-est website permits its users to view, post, and organize content in which they are interested by creating pins on their virtual Pinterest “Pinboard.” Pins are pieces of digital content that are shaped like a vertical rectangular box, and contain a photo, caption, and various action buttons. To create a pin, users can either go to a different website and transfer content by clicking on a “Pin It” action button, or browse content others have already pinned on Pinterest and “re-pin” that content to their Pin-board. Some pins, called “rich pins,” are associated with a particular product offered by one of Pinterest’s partners. For example, a rich pin of a pair of sandals from a shoe retailer’s website will automatically show the current price of the sandal and whether it is in stock.

Pinterest permits its users to create multiple Pinboards with different subject matters. Some of the most popular areas about which Pinterest users create pins on Pinterest are recipes, fashion, home décor, and travel. Regardless of its subject matter, each Pinboard a Pinterest user creates is viewable by all other Pinterest users by default. Pinterest users have the option to change the default by creating “secret” boards that only they and their specifically invited friends can see. In November of 2013, Pinterest launched a particular type of Pinboard called a “Place Board,” which allows Pinterest users to add location information to certain pins. Many Pinterest users use these Place Boards as part of-their vacation and travel-related research on Pinterest.

Pinterest owns two federal trademark registrations for the word mark “PIN-TEREST,” see Trial Exhibit (“TX”) 23; TX24, and two federal trademark registrations for the word mark “PIN,” see TX25; 1X26. It does not have a federal trademark registration for the word mark “PIN IT.” Pinterest has used each of the Pinter-est, Pin, and Pin It word marks since March of 2010.

B. Pintrips

Pintrips is a website-based travel planning service that enables users to monitor the price fluctuations of airline flights.' Co-founder and CEO Stephen Gotlieb came up with the concept of Pintrips (initially called Flightrax) in 2010 and created a mockup for the service as part of a class project for his MBA program in January of 2011. In order to use the Pintrips service, users must create an account on the Pintrips website and download a Google Chrome browser extension. Once installed, the Chrome browser extension inserts Pin-trips’ pin button next to airline itineraries when the user visits certain third-party travel websites. When a Pintrips user clicks on the pin button next to an itinerary, that itinerary is automatically “pinned” to that user’s “Tripboard” on the Pintrips website. Once pinned, the price displayed next to the itinerary on the user’s Tripboard will update to reflect the flight’s real-time pricing and availability. Pintrips users may return to the Trip-board at any time to see if their pinned flights have changed in price and to compare their pinned travel options side-by-side. When a Pintrips user decides to purchase a flight, he or she may click on the pinned itinerary, which redirects the user to the website from which the flight was originally pinned.

Pintrips’ default configuration permits only individual users to access and view the trip information stored on each Pin-trips user’s Tripboard. Access to this information may be shared with other Pintrips users only when the Pintrips user grants' authorization to an individual email address to view his or her Tripboard. Email addresses may only be invited one at a time; Pintrips does not allow users to share their Tripboards with all other Pin-trips users or any subset of Pintrips users. Users-can communicate with each other through a Pintrips chat feature once they are invited to collaborate on the same Tripboard. “

Pintrips does not own any féderal trademark registrations. Its current application for registration of the “PINTRIPS” mark has been administratively stayed pending the outcome oif this case.

IV. DISCUSSION

The Court was presented with three primary questions at trial: (1) does Pintrips’ use of the “Pintrips” mark infringe Pinter-est’s rights to its registered “Pinterest” mark; (2) does Pintrips’ use of the term “Pin” infringe Pinterest’s rights to its registered “Pin” and/or unregistered “Pin It” marks; and (3) was Pinterest sufficiently famous at the time Pintrips first used its marks in commerce to support a trademark dilution claim. The Court resolves each question below.

A. “Pinterest” vs. “Pintrips”

The Lanham Act prohibits the “use[ ] in commerce [of] any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin” that “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods.” 15 U.S.C. § 1125(a)(1)(A). To establish trademark infringement under the Lanham Act, a plaintiff must demonstrate that (1) it has a valid, protectable ownership interest in a mark, (2) its mark is the senior mark, and (3) the defendant’s mark is likely to cause consumer confusion in the marketplace. Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1202-03 (9th Cir.2012); see also Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1046-47 (9th Cir.1999).

In this case, Pinterest asserts that Pintrips’ name infringes its registered Pinterest word mark. There is no dispute that Pinterest has a valid, protectable ownership interest in the Pinterest mark, and that the Pinterest. mark is senior to the Pintrips mark. Pinterest’s trademark registration is prima facie evidence of the validity of its marks. 16 U.S.C. § 1057(b). Accordingly, the resolution of this infringement claim turns on whether the Pintrips mark is likely to cause consumer confusion in the marketplace. Specifically, the question is whether consumers are likely to mistakenly believe that Pintrips is “somehow affiliated with or sponsored by” Pinterest. Cohn v. Petsmart, Inc., 281 F.3d 837, 841 (9th Cir.2002); see also Dreamwerks Prod. Grp., Inc. v. SKG Studio, 142 F.3d 1127, 1130 (9th Cir.1998) (“[T]he question here is whether a reasonable consumer attending a [convention sponsored by the plaintiff] might do so believing that it is a convention sponsored by [the defendant].”).

To answer this question, the Court applies the eight-factor test articulated by the Ninth Circuit in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979). The “Sleekcmft factors” include: (1) the strength of the allegedly infringed mark; (2) the proximity of the parties’ goods; (3) the similarity of the parties’ marks; (4) the extent to which there is evidence of actual confusion; (5) the marketing channels used by the parties; (6) the degree of care likely to be exercised by the purchasers of the parties’ products; (7) the alleged infringer’s intent in selecting its marks; and (8) the likelihood of expansion of the parties’ product lines. Id.

The courts’ application of the eight Sleekcmft factors in determining the likelihood of confusion is supposed to be “pliant,” and the Ninth Circuit has warned against “excessive rigidity” in their application. Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 632 (9th Cir.2008). Instead, “[t]he test is a fluid one and the plaintiff need not satisfy every factor, provided that strong showings are made with respect to some of them.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 631 (9th Cir.2005); see also Dreamwerks, 142 F.3d at 1129-32 (allowing case to proceed past summary judgment where the plaintiff overwhelmingly satisfied three Sleekcmft factors). Courts have extensive discretion in determining how much weight to accord each factor based on the circumstances of the case. See Interstellar Starship Servs., Ltd. v. Epix, Inc., 304 F.3d 936, 941 (9th Cir.2002).

As will be discussed in more detail below, after considering each Sleekcmft factor and balancing them as a whole, the Court finds that .the factors considered in their totality weigh against a finding that consumer confusion is likely.

1. The “Pinterest” Mark is Suggestive

The purpose of examining the strength of the plaintiff’s mark is to determine the scope of trademark protection to which the mark is entitled. Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1141 (9th Cir.2002). The strength of the senior mark determines the scope of trademark protection which applies. Surfvivor Media, 406 F.3d at 631 n. 3. The strength of the junior mark, while important in cases of réverse infringement, is not relevant to the Court’s analysis outside of that context. See La Quinta Worldwide LLC v. Q.R.T.M., S.A. de C.V., 762 F.3d 867, 875 (9th Cir.2014) (“This is not a reverse infringement case, and the district court should not have considered the strength of [defendant’s] mark in determining what level of trademark protection to extend to [plaintiffs] mark.”).

Trademarks are divided into five categories. The two strongest sets of marks are “arbitrary” and “fanciful” marks, which trigger the highest degree of trademark protection. Entrepreneur Media, 279 F.3d at 1141. The third category, “suggestive” marks, do not “describe the product’s features, but suggest[] them.” Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042, 1047 n. 8 (9th Cir.1998) (emphases omitted). Examples include “Slickcraft” boats, or “Air Care” for a service that maintains medical equipment for administering oxygen. Id.; see also Sleekcraft, 599 F.2d at 349. The fourth category of marks is referred to -as “descriptive.” Kendall-Jackson Winery, 150 F.3d at 1047. An example of a descriptive mark is “Honey Roast” for nuts roasted with honey. Id. at 1047 n. 8. Because these marks merely describe a characteristic of the product, they do not receive any trademark protection unless they acquire sufficient “secondary meaning” to create an association between the mark and the product. Id. at 1047. The final category of marks consists of “generic” marks, which “describe the product in its entirety, and which are not entitled to trademark protection. Examples include ‘Liquid controls’ for equipment that dispenses liquid, or ‘Multistate Bar Examination’ for a bar examination that may be taken across multiple states.” Surfvivor Media, 406 F.3d at 632 (citation omitted).

In this ease, the parties agree that “Pinterest” is at .least a suggestive mark, which entitles it to trademark protection without a showing of secondary meaning. Sleekcraft, 599 F.2d at 349 (“Although less distinctive than an arbitrary or fanciful mark and therefore a comparatively weak mark, a suggestive mark will be protected without proof of secondary meaning.”). While Pinterest argues that the Pinterest mark may straddle the line between suggestive and arbitrary, PI. Br. at 5, the Court finds that Pinterest is clearly a suggestive mark. Suggestive marks “subtly connote something about the products.” Sleekcraft, 599 F.2d at 349; see also Zobmondo Entm’t, LLC v. Falls Media, LLC, 602 F.3d 1108, 1114 (9th Cir.2010) (“A suggestive mark is one for which ‘a consumer must use imagination or any type of multistage reasoning to understand the mark’s significance ... the mark does not describe the product’s features, but suggests them.’”)' (emphases and citation omitted). Here, the Pinterest mark is a combination of the words “pin” and “interest” mashed together to create a new word. Accordingly, while understanding the meaning of the “Pinterest” mark requires the public to employ the multistage reasoning that differentiates suggestive marks from those that are merely descriptive, the combination of “pin” and “interest” cannot reasonably be said to be arbitrary or fanciful. The Pinterest mark is a textbook example of a suggestive mark that “subtly connote[s] something” about the company’s services, Sleekcraft, 599 F.2d at 349, in that it conveys to users that the website allows them to pin their interests.

The Court’s conclusion that Pinterest is a suggestive mark does not end the inquiry under this factor. Identifying whether a mark is arbitrary, fanciful, suggestive, descriptive, or generic is only the first step. The second step is to determine the strength of the mark in the marketplace, i.e,, the commercial strength of the mark. One Indus., LLC v. Jim O’Neal Distrib., Inc., 578 F.3d 1154, 1164 (9th Cir.2009). “When similar marks permeate the marketplace, the strength of the mark decreases. In a crowded field of similar marks, each member of the crowd is relatively weak in its ability to prevent use by others in the crowd.” Id. (internal quotation marks omitted). “The more likely a mark is to be remembered and associated in the public mind with the mark’s owner, the greater protection the mark is accorded by trademark laws.” GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1207 (9th Cir.2000).

Pintrips offers little argument to dispute that “Pinterest” is a commercially strong mark. See Def. Br. at 18. At the time of the bench trial, approximately one-quarter of the United States’ population (ie., 80 million people) used the Pinterest website each month. The Court was not presented with evidence that the marketplace is crowded with other similar names. Although the Ninth Circuit has noted that suggestive marks are “comparatively weak,” Sleekcraft, 599 F.2d at 349, the Pinterest mark should be afforded greater protection than most other suggestive marks given its commercial strength. Accordingly, the Court finds that this Sleek-craft factor weighs slightly in favor of Pinterest.

2. The Proximity of the Parties’ Goods or Services

“Goods or services that, are closely related are generally more likely than unrelated goods or services to confuse the public as to their sources.” La Quinta, 762 F.3d at 875 (citation omitted). The proximity of the parties’ products is relevant to the confusion analysis in that “[flor related goods, the danger presented is that the public will mistakenly assume there is an association between the producers of the related goods, though no such association exists. The more likely the public is to make such an association, the less similarity in the marks is requisite to a finding of likelihood of confusion.” Sleekcraft, 599 F.2d at 350 (citation omitted). The public is likely to make such an association “when the goods are complementary, the products are sold to the same class of purchasers, or the goods are similar in use and function.” Id.; see also Brookfield Commc’ns, 174 F.3d at 1056 (“[T]he relatedness of each company’s prime directive isn’t relevant. Instead, the focus, is on whether the consuming public is likely somehow to associate [the defendant’s] products with [the plaintiff].”) (citation omitted).

Pinterest argues that the Pinterest and Pintrips websites are related because both companies offer “services related to the travel industry generally” and “collaborative products that allow consumers to plan travel using the Internet.” PI. Br. at 6-7. Pinterest points to evidence introduced at trial demonstrating that Pinterest users often use its website to research their travel destinations and activities. See _ Tr. at 72:4-7 (“So a lot of people will use Pinterest to plan dream vacations, honeymoons, as we saw.earlier. I’ve used it to plan travel itineraries for, people coming to visit me in cities.”); id. at 72:16-17 (“There are lots of pins that -will provide ideas about how you can save money or find the best — best travel tips.”); id. at 73:7-9 (“[W]e worked with Travel + Leisure Magazine to get some coverage for Place Pins at launch, then to explain how people use Pinterest for travel.”). Pinterest also offered evidence that it allows users to create place pins on their Place Boards, which adds specific location information to a pin. See Tr. at 58:22-24 (“That’s a button that would allow the user to add some data to that pin using a partner that we have called [Foursquare so that they can identify the actual location, of that pin.”). Certain pins can be associated with indicators called “map markers,” which show the user where, for example, a pin of a hotel would be located on a map. See Tr. at 60:22-61:6.

While the Court credits the testimony of the Pinterest witnesses who discussed how Pinterest is used to research travel destinations, the Court disagrees that this use is similar to Pintrips’ service. Pintrips is an online tool that tracks fluctuating airline prices by providing users the ability to save flight itineraries from multiple airline websites to a single location. See Tr. at 464:2-474:14. After searching airline websites and pinning the itineraries they wish to track, Pintrips users may then return to the Pintrips website — without needing to duplicate the effort of their initial search — to see whether their selected flights have become more or less expensive. Id. Pintrips does not provide users the opportunity to research them travel destinations, identify sights to see while traveling, or gather ideas for new travel destinations from other users, given that all Pintrips Tripboards are, by default, private. Id. at 476:1-477:11. The only arguable “social media” aspect of the Pintrips site is a function allowing users to individually invite other users (generally traveling companions or people making travel arrangements on the user’s behalf) to access a particular trip so that those users can also view and pin itineraries for the primary user’s trips. Id:, see also id. at 661:10-28.

In contrast, Pinterest is a social media website where users can share photos, articles, and other information about their interests on personalized web-based Pin-boards which are, by default, viewable by all of Pinterest’s 80 million monthly users. Tr; at 61:25-62:3. Travel is just one of the dozens and dozens of exceptionally broad subject-matter categories about which Pin-terest users choose to pin. Tr. at 125:5-126:7. While Pinterest users undoubtedly use the service to research their travel destinations (as well as hundreds of other subjects), that fact does not render Pinter-est’s social media service similar to Pin-trips’ airline' itinerary-tracking tool. Pin-terest-has no travel booking function; is not working on a travel booking function; and has no concrete plan to begin working on a travel booking function in the future. See Tr. at 88:14-15 (“We’ve discussed [expanding Pinterest’s products to facilitate booking travel], but we haven’t specifically set a date when we would start working on something like that.”).. That Pinterest may aspire to proyide a tool similar to Pintrips’ service at some unknown point in the future is too speculative and indefinite to weigh in favor , of a finding of proximity under this factor.

In further support of its argument, Pin-terest cites to a few emails in which Pin-trips executives refer to Pinterest as a possible competitor. ' See, eg., TX40; TX186. Although the Court agrees that these statements are relevant to its analysis, the Court finds the comparison of the services actually performed by the Pinter-est and Pintrips websites to be more persuasive than the representations made by Pintrips’ executives to a public relations firm and in an investor pitch deck. For example, in Mr. Gotlieb’s November 7, 2012 email to' an employee at a public relations firm, he states that -“[t]he main competitors Pintrips has are meta-sites_The other competitors are either players that need to pivot and like our idea or newcomers.” TX40 at PIN-TRIPS-00006790. In what" appears to’ be almost an afterthought, Mr. Gotlieb states that “[o]ne more competitor would actually be Pinterest.” Id. at PINTRIPS-00006791. The Court also does not find the “WHY INVEST NOW?” section of an investor pitch deck introduced at trial through'Pin-trips’ Chief Product Officer, Sheila Bijoor, to override the Court’s analysis of the parties’ services. See TX186 at PINTRIPS_00006824 (“[Ijnvest in us NOW because we have the ingredients for- success, and there is competition in the market from players like Pinterest — so we have no time to waste!!”) (capital lettering and exclamation points in original). Both emails appear tailored to evoke a comparison to an already successful company, rather than serve as a reasoned analysis of Pin-trips’ realistic competitors. The Court agrees with Ashley Raiteri, a travel industry consultant who was an integral player in the genesis of the Pintrips product (and who has substantially more experience working and consulting in the travel industry than Mr. Gotlieb or Ms. Bijoor, Tr.- at 640:16-642:4), that Pinterest is not a competitor of Pintrips, Tr. at 672:2-5 (stating that he did not “consider. Pinterest to be a competitor of [Pintrips] or its products”).

Although this Sleekcmft factor does not weigh quite as overwhelmingly in favor of Pintrips as it would in the absence of the emails cited by Pinterest, the Court finds that this factor still strongly weighs against a likelihood of consumer confusion.

3. Similarity of the Parties’ Marks

“The similarity of the marks is ‘a critical' question in the likelihood-of-confusion analysis.’ ” La Quinta, 762 F.3d at 875 (citation omitted). To assess similarity, courts must “compare the two marks in terms of sight, sound, and meaning, considering the marks as a whole, as [they] appear in the marketplace.” Id. (internal quotation marks and citation omitted); see also Sleekcraft, 599 F.2d at 351 (“Similarity of the marks is tested on three levels: sight, sound, and meaning.”). Similarities between marks generally weigh more heavily than differences, id. and the amount of similarity required to support a likelihood of confusion decreases where the services at issue are themselves similar, La Quinta, 762 F.3d at 876 (citations omitted).

a. Sight

There are undeniable visual similarities between the “Pinterest” and “Pin-trips” marks. Each mark begins with the word “pin” and then continues with another word (or portion of another word) beginning with the letter “t.” The marks are also the same approximate length: nine letters for Pinterest and eight letters for Pintrips. However, .this is not a case where the allegedly infringing mark differs in only one or two inconspicuous letters- in the middle of the mark, see Sleekcraft, 599 F.2d at 351 (Sleekcraft and Slickcraft), or is identical save for different emphasis on one of the letters, see Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, 1128 (9th Cir.2014) (observing the “o” in “POM”- is heartshaped, and the “o” in “pom” has a breve over it). Here, the second half of each mark bears significant differences (i.e., “terest” and “trips”). While the differences in the latter half of the marks do not completely overcome the visual similarities identified above,’ they lessen the weight the Court gives to this sub-factor. Accordingly, this sub-factor weighs only slightly in favor of a finding of confusion.

b. Sound

“Sound is also important because reputation is often conveyed word-of-mouth.” Sleekcraft, 599 F.2d at 351. “Slight differences in the sound of trademarks will not protect the infringer.” Id. at 352 (internal quotation marks and citation omitted).. Pintrips argues that the marks do not sound the same because Pintrips is a two-syllable word, while Pinterest is a three-syllable word. Def. Br. at 17. Although Pintrips may be correct as a matter of grammar, the Court accepts Pinterest’s argument (which is consistent with the pronunciations used by counsel and witnesses at the trial) that, in the real world, Pinterest often may be pronounced with two syllables (ie., “Pin-trist”). Regardless, whether pronounced with two or three syllables, there is sufficient similarity in the sound of each mark to plausibly cause consumer confusion. The first syllable of each mark is identical, as is the first letter of the second syllable, followed very closely (álthough not immediately in the Pinterest mark) by an “r”: Accordingly, while the marks do not sound identical when spoken, they sound sufficiently similar for this sub-factor to favor a finding of confusion.

c. Meaning

“Closeness in meaning can itself substantiate a claim of similarity of trademarks.” Sleekcraft, 599 F.2d at 352. In this.case, both marks are “made up” words that do not appear in the dictionary. Pinterest is a “mashup” or “telescoped” word, in that it combines two words (pin and interest) but does not repeat the two shared letters at the end of pin and the beginning of interest. Pintrips is a compound word comprised of two words (pin and trips) with no shared letters removed. Although both words suggest that consumers will be able to perform the well-known computer operation of pinning, each mark also suggests that the services permit consumers to pin different things: interests for Pinterest and trips for Pintrips. • In other words, the only shared meaning associated with the two marks is based on the descriptive term “pin.” When viewed as a whole, the Court finds that the meanings of these made-up words do not support a finding of likelihood of consumer confusion. Accordingly, this sub-factor weighs in favor of Pintrips.

^ »»<

In summary, the sight sub-factor weighs slightly in favor of Pinterest, the sound sub-factor weighs in favor of Pinter-est, and the meaning- sub-factor weighs in favor of Pintrips. Considering all three similarity sub-factors together, the Court finds that this Sleekcraft factor weighs slightly in favor of a finding of consumer confusion.

4. Evidence of Actual Confusion

“Evidence that use of the two marks has already led to confusion is persuasive proof that future confusion is likely.” Sleekcraft, 599 F.2d at 352. However, due to “the difficulty in garnering such evidence, the failure to prove instances of actual confusion is not disposi-tive .... [T]his factor is weighed heavily only when... the particular circumstances indicate such evidence should have been available.” Id.; see Brookfield Commc’ns, 174 F.3d at 1050 (“[Difficulties in gathering evidence of actual confusion make its absence generally unnoteworthy.”).'

As observed by the Ninth Circuit in many other cases, it is unsurprising that there is little evidence of actual confusion here. Pinterest points to a single email sent to Pintrips’ customer support, in which an individual emailed Pintrips concerning her Pinterest login and password. One potentially confused consumer, standing alone, is not sufficient evidence of actual confusion for this factor to weigh in favor of Pinterest. Moreover, even this email does not suggest that the consumer’s confusion affected her purchasing decision — ie., that she visited or used the Pin-trips website mistakenly believing it was the Pinterest website. See, e.g. Instant Media, Inc. v. Microsoft Corp., No. 07-cv-02639-SBA, 2007 WL 2318948, at. *14 (N.D.Cal. Aug. 13, 2007) (“Relevant confusion is that which affects purchasing decisions, not confusion generally.”). On the other hand, because Pintrips has relatively few users, the Court would not expect significant evidence of confusion. Accordingly, the absence of evidence of confusion by actual Pinterest or Pintrips users neither helps nor hurts either party.

At trial, Pinterest offered the findings of two surveys to support its claim of consumer confusion. The first survey, conducted by Dr. Jacob Jacoby, showed one group of participants a still mockup of Pintrips’ actual website landing page (without the URL bar), and another group of survey participants an altered landing page with the name “Cliptrips” and an associated “clip” button in place of the name Pintrips and its actual pin button. Dr. Jacoby’s survey then asked each participant to identify the source of the website they were shown. The second survey was conducted by Dr. Deborah Jay. Dr. Jay altered United Airlines’ website landing page by placing Pintrips’ pin button next to Facebook and Twitter’s social media icons as they appear on the real United Airlines website, and then asked survey participants to identify the company responsible for the inserted pin button. Pinterest argues that the. results produced by these surveys demonstrate consumer confusion sufficient to tilt this factor in its favor.

The Court strongly disagrees. As described below, fatal defects in the design of each survey render their results meaningless to the resolution of this lawsuit,

a. Dr. Jacoby’s Survey

Pintrips’ pretrial filings sought to exclude Dr. Jacoby’s testimony on the ground that his' survey tested whether respondents were likely to associate the combination of the Pintrips name and its pin' button with Pinterest, as opposed to the Pintrips name alone. Dkt. No. 147. Pintrips argued that including the pin button in the stimulus provided to respondents was a fundamental flaw in Dr. Jacoby’s survey design because Pinterest did not have a right to prohibit Pintrips from using the word pin to represent the well-known computer function of pinning. Id. The Court denied Pintrips’ motion in limine, holding that whether Pintrips had a right to use that term was a question of fact to be determined at trial, and could not supply a basis for excluding testimony before trial began. See Dkt. No. 191 at 5.

Having now made the determination that Pintrips’ use of the pin button on its website constitutes fair use under 15 U.S.C. § 1115(b)(4), see Section IV.B, the Court agrees with Pintrips that the results of Dr. Jacoby’s survey answer a different question than that posed to the Court by this lawsuit. Instead of measuring consumer confusion as to the Pintrips mark alone, Dr. Jacoby’s survey measured consumer confusion arising from the Pintrips mark and the Pintrips’ pin button when viewed in combination. However, confusion caused by Pintrips’ fair use of its pin button cannot support a finding of confusion between the Pinterest and Pintrips marks. See KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 123, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004) (“If any confusion results [from the defendant’s fair use of a descriptive term], that is a risk the plaintiff accepted when it decided to identify its product with a mark that uses a well known descriptive phrase.”) (internal quotation marks and citation omitted). As Dr. Susan McDonald convincingly explained in her critique of Dr. Jacoby’s survey design, it is impossible to disaggregate the responses of survey respondents who associated Pintrips’ website with Pinterest '(1) based in some way on its pin button or pinning functionality from those that (2) were influenced by the Pintrips name alone. See Tr. at 1010:6-1011:5; id. 1011:2-5 (“So when you use a [stimulus] that essentially.. .embodies two things at once, you are deprived of the ability to attribute causality to either one of those. You can’t parsé it.”). Dr. Jacoby agreed that his survey was not designed to distinguish respondents’ answers in that manner. Tr. at 973:18-25 (agreeing to the statement that “there is no way for you to separate out.. .what confusion was because of the name and what confusion was not because of the name.. .because the control didn’t include the pinning functionality in it”).

Although the possibility that survey respondents were confused by the fair use of Pintrips’ pin button would by itself justify affording no weight to Dr. Jacoby’s survey results, the explanations provided by many survey respondents confirm, that they were influenced by Pintrips’ fair use of the word pin. As Dr. McDonald explained, “based on the open end[ed questions].. .it’s abundantly clear that the pinning functionality was a very meaningful factor for some of the respondents.” Id. -at 1010:3-5. A review of the open-ended answers of .purportedly confused respondents reveals that a great number cited the simple fact that Pintrips permitted users to pin content as a reason to associate the service with Pinterest. See TX206, Appendix F2 (“it uses the phrase pin flights,” “because you pin it,” “the pins and the social media aspects,” “the pin trips statement,” “pin,” “the use of pins to highlight features,” “the use of pins,” “pinning your trips planned from various sites,” “you are pinning your desired selections”). These responses do hot support the claim that consumers confused Pin-trips’ website with Pinterest because of the alleged similarity of the Pintrips word mark.

Moreover, the Court finds-that Dr. Jaco-by’s survey cannot be saved simply by disregarding the confusion of survey respondents who affirmatively listed Pin-trips’ pin button as the cause of their confusion. This is because Dr. Jacoby’s survey was not designed to identify how many other respondents were influenced by Pintrips’ pin button, but, for whatever reason, did not take the time to write down the pin button as his or her reason for associating the Pintrips website with Pin-terest. See Tr. -at 1010:20-25 (“People don’t say everything in an open end, but they often say things that , are top of mind. I wouldn’t ever want to trust the absence of a particular reference.or description-of — of why someone had made an attribution.”). In short, Dr. Jacoby’s survey design does not permit the Court to draw any inference- about whether — absent the influence of the pin button and numerous references to the Pintrips website’s pinning features — any survey respondents would have associated the Pintrips website with Pinterest.

b. Dr. Jay’s Survey

Pintrips’ pretrial filings sought to exclude Dr., Jay’s testimony on the ground that her survey measured whether adding the Pintrips pin button to the bottom of the United Airlines website would lead to consumer confusion, despite the fact that Pintrips’ pin button has never been used in that manner. See Dkt. No. 150, Pinterest opposed that motion, arguing that internal emails sent shortly before the initiation of this action demonstrated that Pintrips discussed adding this feature, and that courts outside of this circuit have considered planned activities when deciding whether to order injunctive relief. See Dkt. No. 163-3 at 3-4 (citing MetLife, Inc. v. Metro. Nat’l Bank, 388 F.Supp.2d 223 (S.D.N.Y.2005) and U.S. Polo Ass’n, Inc. v. PRL USA Holdings, Inc., 800 F.Supp.2d 515 (S.D.N.Y.2011)).

In its order denying Pintrips’ motion to exclude Dr. Jay, the Court found that' the facts at issue in the cases cited by Pinter-est provided only marginal support for its argument. Dkt. No. 191 at 6. In both MetLife and U.S. Polo, the imminency of the alleged infringement at issue made it unmistakably clear what the future allegedly infringing conduct would look like. In contrast, the Pintrips emails purportedly providing the basis for Dr. Jay’s survey demonstrated that Pintrips was still considering how to implement the injection of its pin button on third-party websites and, even assuming it was successful in convincing any third parties to do so, how that pin button would look. TX39 at PIN-TRIPS-00006777; TX233. Pintrips’ plans — to the extent it had plans at all— were clearly in the formative stage. This presented a significant difficulty for Dr. Jay’s survey design in that she had to guess, at the very least: (1) what the Pin-trips “pin” button would look like; and (2) where it would appear on the third-party travel website. Accordingly, the Court was deeply skeptical of Dr. Jay’s decision to place the hypothetical pin button next to the Facebook and Twitter icons at the bottom of the United Airlines home page, as that choice did not appear to be supported by any evidence in the record.

Despite these misgivings, the Court permitted Dr. Jay to testify on the chance that her testimony “could possibly provide some minimal probative value given that the development of Pintrips’ API button had passed the purely hypothetical stage.” Dkt. No. 191 at- 6;- But Dr, Jay’s testimony at trial did not'reach even this minimal level of probative value. As numerous trial exhibits and testimony made clear, the email discussion upon which Dr. Jay based her survey did not concern the insertion of a pin button in á row of links to social media websites at the bottom of a third party’s webpage. See TX233 at PIN-TRIPS-00006939 (email from Mr. Gotlieb stating that adding a button to third-party websites that direds users to the Pintrips website is “[d]efmitely not something to try and tackle right now”). In fact, that placement would be entirely inconsistent with the purpose of the Pintrips pin button, which is to allow users to select particular itineraries to be- stored on their personal Pintrips Tripboard. Dr. Jay’s proposed placement of the pin' button' at the bottom of an airline’s webpage would serve ño purpose, other than to transform it into something that it is not: a social media badge like the Twitter and Facebook icons already appearing on United Airlines’ website. As Mr. Raiteri credibly and convincingly explained during his examination:

Q. All right. Was there ever any discussion, June 8th until you left the .company, about putting a Pintrips pin button on the bottom of that home page, for example, as an éxample, next to Face-book and Twitter social media badges?

A. No; that wouldn’t have made any sense.

Q. Why not?

A. Um, those buttons perform a different function than the Pintrips button. Those buttons are a way of expressing brand loyalty or brand identification. Which is not what the Pintrips button is for. The Pintrips button is to save the information for later perusal. It’s not to broadcast to the world that you like the flight or that the flight is amazing. It’s so that you can go back later and compare that flight to another flight before you buy it.

Tr. at 671:3-17.

Instead, the evidence presented at trial made clear that, to the extent Pintrips sought to have third-party websites inject its pin button in the future, it contemplated that the button would be inserted in the same general manner as it is seen when current Pintrips users download Pintrips’ Chrome plug-in (i e., the pin button would appear next to each itinerary). As Mr. Gotlieb explained:

Q. .. .When you say you want your travel partners to inject a button, what did you mean?

A. Well, I meant, basically, instead of a user having to download our extension when they would go to a travel site like United and see different itinerary options, that our pin button would be there automatically.

[•••]

Q; I’m sorry, let me back up. Right now you have a browser extension which puts the image of a pin button on a travel site like Kayak; correct?

A. That is correct.

[•••]

Q. And if you were to develop an API bit of technology code to provide to Kayak—

A. Yes.

Q. —would that be to replace the browser button, but put it in the same place? A. Yes, it would. It’s the same code.

Tr. at 235:23-237:2. In other words, Dr. Jay’s survey is completely untethered from how Pintrips works now or has even been contemplated to work in the future. The Court finds the results of Dr. Jay’s survey are not relevant to its analysis.

For these reasons, the Court finds no persuasive evidence of actual confusion between the Pinterest and Pintrips marks. However, because the Court also finds that Pintrips’ small user base suggests that evidence of confusion would likely not be available, this Sleekeraft factor does not weigh in favor of either party.

5. Marketing Channels

“Convergent marketing channels increase the likelihood of confusion.” Sleekcraft, 599 F.2d at 353. When examining the marketing channels used by the competing companies, the Court considers “where the goods or services are sold, the sales and marketing methods employed, and the class of purchasers exposed to the marketing efforts.” La Quinta, 762 F.3d at 876-77 (citation omitted). For example, the Ninth Circuit has found this factor to weigh in favor of a likelihood of confusion where the retail dealers of the parties both advertised their boats by “participating in smaller boat shows and by advertising in local newspapers and classified telephone directories.” Sleekcraft, 599 F.2d at 353. Pinterest argues that this factor weighs in favor of a finding of consumer confusion in this case because both Pinterest and Pin-trips advertise on the Internet through Facebook and Twitter, as well as through word of mouth. See PI. Br. at 10.

However, the Ninth Circuit has declined to place substantial weight on this factor where the shared marketing channels are shared by numerous companies in addition to the parties at issue. See Playboy Enters., Inc. v. Netscape Commc’ns Corp., 354 F.3d 1020, 1028 (9th Cir.2004) (“PEI and the advertisers use identical marketing channels: the Internet. More specifically, each of their sites appears on defendants’ search results pages. Given the broad use of the Internet today, the same could be said for countless companies. Thus, this factor merits little weight.”); see also Entrepreneur Media, 279 F.3d at 1151 (“Some use of the Internet for marketing, however, does not alone and as a matter of law constitute overlapping marketing channels.”) (emphasis in original). The Ninth Circuit’s observation in Playboy is truer today than it was when the decision was issued over a decade ago: almost every company advertises on the Internet. The same can be said of “word-of-mouth” advertising, which practically all businesses seek to encourage. Pinterest has pointed to no advertising activity that distinguishes Pintrips’ Internet advertising from the Internet advertising undertaken by most other companies.

Accordingly, like the Ninth Circuit in Playboy, the Court finds that this Sleek-craft factor does not tilt in favor of either party given the circumstances presented in this case.

6. The Type of Goods and the Degree of Care Exercised by Purchasers

“Low consumer care... increases the likelihood of confusion.” Playboy, 354 F.3d at 1028. Under this factor, the Court must evaluate “the type of good or service offered and the degree of care one would expect from the average buyer exercising ordinary caution.” See La Quinta, 762 F.3d at 877 (internal quotation marks and citation omitted). “When the buyer has expertise in the field, a higher standard is proper though it will not preclude a finding that confusion is likely.” Sleekcraft, 599 F.2d at 353. “Similarly, when the goods are expensive, the buyer can be expected to exercise greater care in his purchases; again, though, confusion may still be likely.” Id.

On one hand, like many website-based companies, both Pinterest and Pintrips offer their services for free. Accordingly, a case can be made that this factor weighs in favor of a finding of confusion. See Brookfield Commc’ns, 174 F.3d at 1060 (“[Wjhen dealing with inexpensive products, customers are likely to exercise less care, thus making confusion more likely.”). On the other hand, unlike many inexpensive goods, Pintrips and Pinterest services do not sit next to each other on the grocery-store shelf waiting for a consumer to make an impulsive purchase. Both websites require consumers to create an account before they can start pinning. See Tr. at 54:4-55:25; id. at 465:20-466:5. Pintrips also requires users to download and install a special Chrome browser extension in order to use its service. See id. at 466:6-12.

The Court agrees with Pintrips that the threshold activities required to gain access to the parties’ services force consumers to exercise more care than they normally would be expected to take with regard to free products. For example, in order to reach the point where a potentially confused consumer can actually use the Pintrips service, that consumer must click through several web pages that describe the Pintrips product in detail, as well as download an extension onto his or her browser. See id. at 464:2-474:14. These steps provide potentially confused consumers the opportunity to realize their mistake at multiple points before they are in a position to start comparing itineraries.

Accordingly, the Court finds that this Sleekcrafi factor is neutral or weighs slightly against a finding of confusion.

7. Pintrips’ Intent in Selecting Its Mark

“[I]ntent to deceive is strong evidence of a likelihood of confusion.” Entrepreneur Media, 279 F.3d at 1148 (internal quotation marks and citation omitted). “When the alleged infringer knowingly adopts a mark similar to another’s, reviewing courts presume that the defendant can accomplish his purpose: that is, that the public will be deceived.” Sleekcraft, 599 F.2d at 354. “This factor favors the plaintiff where the alleged infringer adopted his mark with knowledge, actual or constructive, that it was another’s trademark.” Brookfield Commc’ns, 174 F.3d at 1059.

In this ease, Pinterest argues that Pintrips intentionally selected the Pintrips mark in order to take advantage of Pinterest’s brand recognition. In support of its position, Pinterest cites to evidence that Mr. Gotlieb learned of Pinterest on June 10, 2011 when Mr. Raiteri sent him an email directing him to “[t]ake a look at Pinterest.com in relation to our alpha],]” see TX69 at PINTRIPS00006890, and that Pintrips did not obtain its Pintrips-related domain names until several days later, Tr. at 655:11-22. The Court agrees that the evidence introduced at trial fairly establishes this .sequence .of events. However, the Court finds that Pinterest’s suggestion that Pintrips was still deciding whether to use the Pintrips name by as late as the end of 2011 is not supported by the trial evidence.

During his direct examination, Mr. Rait-eri explained the process by which he came up with the Pintrips name. His explanation was both credible and detailed. From June 8, 2011 through June 10, 2011, Mr. Gotlieb and three members of Mr. Raiteri’s travel incubator (Mr. Raiteri, Timothy O’Neil Dunne, and Paul Addy) participated in a brainstorming workshop to flesh out Mr. Gotlieb’s business ideas. Tr. at 643:5-12. During that meeting, they discussed several travel-related products. The first was Mr. Gotlieb’s idea for a consumer-facing website intended to “per-sonalizó] the travel shopping experience and minimiz[e] frustration.” Id. at 645:2-4. The second, which Mr. Raiteri characterized as the “real revenue opportunity,” was a product that would use the back-end “data that we could collect by understanding a travel shopper’s preferences.” Id. at 645:4-6. As Mr. Raiteri explained, “we wanted one business which would be revenue-neutral, that would provide a service to travelers, and in the process, collect data. That data would be used by the second business to establish a dynamic pricing algorithm and market for airlines.” Id. at 645:15-19.

The Flightrax product that Mr. Gotlieb devised during his business school class was to be a consumer-facing product. Id, at 645:20-646:13. However, even going into the June 2011 workshop, Mr. Raiteri, Mr. O’Neil Dunne, and Mr. Addy all considered the Flightrax name unworkable. Id. at 645:23-646:7. During a brainstorming session on a' new. name for the Flightrax product, Mr. Addy stood at the whiteboard “going back and forth* from a drawn-up mockup of a travel website like Expedia, where the itineraries were listed, and another drawn-up mockup of a canvas where different itineraries were compared.” Id. at 647:3-7. He repeated “[a]nd you pin this over here, you pin this trip to this board over here, and then you pin this trip to this board over here,” id. at 647:8-10, until Mr. Raiteri said “[t]hat’s what it is. Pinning trips. ‘Pintrips],]’ ” -id. at 649:2-3. By the end of the brainstorming session, Mr. Rait-eri had selected Pintrips as the name that he wanted for the consumer-facing product. Id. at 654:14-655:10. Mr. Raiteri did not learn about Pinterest’s existence until later that day when he “told [his wife] about how [the Pintrips product] would work, and how you would pin your trips to a pin board, and that we’d use bookmark-let technology to get it done, or maybe we’d build a Chrome extension.” Id. at 665:19-666:13. Mr. Raiteri’s wife volunteered that the Pintrips website sounded like it would operate like Pinterest, “where you install a bookmarklet, and then when you’re browsing, you can pin photos to your page.” Id. at 666:11-13.

Although Mr. Gotlieb and the other participants in the June 2011 workshop learned of Pinterest’s existence when Mr. Raiteri emailed them that night, TX69, Mr. Raiteri credibly explained that he sent that email (1) before he had even seen the Pinterest website; (2) in relation to whether the Pintrips alpha could feasibly use bookmarklet technology; and (3) not because he did or did not think Pinterest sounded like Pintrips. See id. at 667:7-15. No evidence was introduced at trial that suggested that the Pintrips mark was selected to take advantage of Pinterest’s brand recognition. In fact, no evidence suggests that Pinterest had substantial brand recognition as of June 2011 that Pintrips would want to appropriate. In June of 2011, Pinterest was still an invitation-only website,. id. at 667:16-24, with only approximately 500,000 unique monthly visitors (as represented to the Court by Pinterest’s demonstrative offered during closing argument). None of the articles submitted to the Court as evidence of Pin-terest’s reputation had yet been published. See PI. FFCL ¶¶ 31-35. In short, Pinterest simply has not offered evidence to support its theory. Instead, the evidence was clear that the name Pintrips was chosen because it was the best option to come out of the thrée-day workshop, which Mr. Raiteri conceived without any knowledge of Pin-terest’s existence. Mr. Raiteri registered several Pintrips domain names just five days later. See Tr. at 658:3-15; TX1107.

Pinterest’s contention that Pintrips was still deciding between the names “Pin-trips” and “Goodr” late into 2011 misconstrues the evidence introduced at trial. As Mr. Raiteri explained, Pintrips and Goodr were conceived .as different products. Tr. at 645:2-19. One would provide a service to travelers and another would amass the traveler data for later use. Id. (explaining that the information gathered from the first product could be used by the second business “to establish a dynamic pricing algorithm -and market for airlines”); see also id., at 461:14-19 (Mr. Gotlieb explaining that the second product could, “based on the knowledge of that specific user, behavior and whatnot, recommend, you know, when to take a cab to. the airport, which flight they would take, and which airline, and arrive in which airport. Basically, automate the entire process as a travel agent would, but through a website.”). Mr. Raiteri registered both the Pin-trips and Goodr domains not as. possible names for the same product, but . as distinct names for two different products. See Tr. at 655:20-22 (“I registered the two domain names that we were going to use for the two different products. Pintrips and Goodr.”). Although Pinterest has identified emails in which the name Goodr was occasionally used to refer to the consumer-facing product, see TX120;. TX122, the Court finds that the evidence, when viewed as a whole, most persuasively supports the interpretation that Pintrips; intended -to use both the Pintrips and Goodr names in some capacity within no more than a few days of the June 2011 workshop.

Accordingly, the facts found by the Court present an unusual case. On the one hand, the Court credits the testimony that Pintrips’ founders -came up with the Pin-trips name before they had ever heard of Pinterest. This finding would normally tilt this Sleekcmft factor in favor of the defendant. On the other hand, Pintrips learned of Pinterest-within a day of coming up with the Pintrips name, and months before it ever started to use the Pintrips name in commerce. In addition, Pinterest presented evidence that Mr. Gotlieb — while not admitting that the Pintrips mark was selected with Pinterest in mind — was certainly not upset that his- company’s name turned out to be similar to a much more well-known mark. See Tr. at 333:16-334:3 (“[I]t’s a coincidence. But it might play to our hand.”). These facts could fairly be read to favor the plaintiff. The closest factual circumstance to this case appears to be found in the Ninth Circuit’s decision in Brookfield Communications, where the plaintiff demonstrated that the defendant had knowledge of the plaintiffs senior mark when it launched its website, but not necessarily when it registered the allegedly infringing domain name. 174 F.3d at 1059. Even where, unlike here, the two marks (“MovieBuff’ and “moviebuff.com”) were “nearly identical,” the Ninth Circuit held the intent factor of the Sleekcraft analysis “indeterminate.” Id. at 1058-59.

The Court finds the same conclusion warranted here. This Sleekcraft factor does not favor either party.

8. Likelihood of Expansion of the Product Lines

When there is “a strong possibility that either party may expand his business to compete with the other,” this factor weighs in favor of finding “that the present use is infringing.” Sleekcraft, 599 F.2d at 354 (internal quotation marks omitted). “When goods are closely related, any expansion is likely to result in direct competition.” Id. The Court must determine whether the allegedly infringing mark is “hindering the plaintiffs expansion plans.” Surfvivor Media, 406 F.3d at 634. A plaintiff must offer proof beyond mere speculation or generalized expansion goals. See id. (holding that mere “expressed interest in” — rather than “concrete evidence” of — expansion tilted factor in favor of defendant); Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1394 (9th Cir.1993) (holding evidence of alleged intent to expand did not demonstrate that the parties would “compete with a similar product in the same market”). For example, in Sleek-craft, the Ninth Circuit held that this factor weighed in favor of the plaintiff where the evidence demonstrated that the parties — who each manufactured slightly different varieties of recreational boats— were diversifying their product lines and thus had the strong possibility of entering the other’s speedboat submarket in the future. See 599 F.2d at 354.

Pinterest has offered no persuasive evidence that could tilt this factor in its favor. As explained in greater detail in Section IV.A.2, Pinterest has no travel booking function; is not working on a travel booking function; and has no concrete plan to begin working on a travel booking function in the future. See Tr. at 88:14-15 (“We’ve discussed [expanding Pinterest’s products to facilitate booking travel], but we haven’t specifically set a date when we would start working on something like that.”). Pinterest’s suggestion that it may, at some unknown time in the future, create a travel booking tool like Pintrips falls well short of the “strong possibility” of expansion a plaintiff is required to demonstrate in order for this factor to weigh in favor of a finding of confusion. See Surfivor Media, 406 F.3d at 634 (“Although [the plaintiff] expressed interest in expanding his product line, mere speculation is not evidence.”).

Accordingly, this Sleekcraft factor weighs heavily in favor of Pintrips.

9. Balancing of the Sleekcraft Factors

The relative import of each Sleek-craft factor is case-dependent. In this ease, most of the factors are neutral. Two factors favor Pinterest (the strength of the Pinterest mark and the similarity of the Pinterest and Pintrips marks), but those factors favor Pinterest by only a slight margin. On the other hand, the two factors that favor Pintrips (the similarity of the parties’ services and likelihood of expansion) support Pintrips to a significantly greater degree. Having weighed these factors in light of the unique facts of this case, the Court finds that Pinterest has not met its burden to prove a likelihood of consumer confusion as to the Pinterest and Pintrips marks under the Sleekcraft test.

B. “Pin” vs. “Pin”

Pinterest next asserts that Pintrips infringes its “Pin” and “Pin it” marks through the use of the word “pin” on the Pintrips website’s pin button (and related content). As with the Pinterest mark, Pin-terest’s “Pin” mark-is registered and Pin-terest’s use of that mark is senior to the existence of Pintrips. However, the Court’s analysis of Pintrips’ use of the word pin is different than the analysis undertaken above. Pintrips argues that Pinterest’s infringement claim fails because Pintrips’ use of the word pin qualifies as “fair use”- under the Lanham Act. See 15 U.S.C. § 1115(b)(4).

“If the trademark holder were allowed exclusive rights [to describe a person, a place or an attribute of a product], the language would be depleted in much the same way as if generic words were protectable.” New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 306 (9th Cir.1992); see also William R. Warner & Co. v. Eli Lilly & Co., 265 U.S. 526, 529, 44 S.Ct. 615, 68 L.Ed. 1161 (1924) (“The use of a similar name by another to truthfully describe his own product does not constitute a legal or moral wrong, even if its effect be to cause the public to mistake the origin.. .of the product.”). Accordingly, trademark law recognizes a defense to liability where the defendant’s allegedly infringing use of the plaintiffs mark is “a use, otherwise than as a mark,... of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin.” 15 U.S.C. § 1115(b)(4). In other words, “[t]he ‘fair-use’ defense, in essence, forbids a trademark registrant to appropriate a descriptive term for his exclusive use and so prevent others from accurately de