New World Solutions, Inc. v. NameMedia Inc. (150 F. Supp. 3d 287, 2015)

United States District Court for the Southern District of New York 2015-12-15

Bankruptcy Commerce and Trade

Citations

Full opinion text

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Plaintiff New World Solutions, Inc. (“NWS” or “Plaintiff”) brings this Action against Defendant NameMedia, Inc. (“Na-meMedia” or “Defendant”). NWS alleges that NameMedia’s registration of and activities associated with the domain name “www.newworldsolutions.com” (the “Domain Name”), constitute trademark dilution in violation of the Lanham Act, 15 U.S.C. § 1125(c), cybersquatting in violation of the Lanham Act, 15 U.S.C. § 1125(d), deceptive acts and false advertising in violation of the New York General Business Law, (“NYGBL”) §§ 349-50, and dilution under NYGBL § 360 — Z. (First Am. Compl. (“FAC”) ¶¶22-44 (Dkt. No. 23).) NameMedia asserts counterclaims under the Lanham Act for a declaratory judgment that U.S. Service Mark Registration No. 3,919,493 (the “Mark Registration”) of the Mark “New World Solutions” (the “Mark”) is invalid and unenforceable pursuant to 15 U.S.C. § 1119, a declaratory judgment under 15 U.S.C. § 1120 that NWS' is liable to NameMedia for all damages incurred by •NameMedia as a result of NWS’s attempts to enforce its registration of the Mark, and attorneys’ fees pursuant to 15 U.S.C. § 1117(a). (Def.’s Answer and Counterclaims to First Am. Compl. (“Def.’s Counterclaims”) ¶¶ 7-30 and Prayer for Relief (Dkt. No. 25).)

The Parties have filed Cross Motions for Summary Judgment. (See Dkt. Nos. 68, 76.) Specifically, NameMedia moves for summary judgment on all of Plaintiffs claims and Defendant’s counterclaims and NWS moves for summary judgment as to NameMedia’s counterclaims. In addition, the Parties have filed Cross Motions To Strike Evidence. {See Dkt. Nos, 87, 94.) For the reasons stated herein, NameMe-dia’s Motion To Strike is granted in part and denied in part, NWS’s Motion to Strike is granted in part and denied in part, NameMedia’s Motion for Summary Judgment is granted with respect to NWS’s claims and denied with respect to NameMedia’s counterclaims, NWS’s Motion for Summary Judgment is denied, and NameMedia’s’ request declaring this case “exceptional” pursuant to the Lanham Act 15U.S.C. § 1117 is denied.

I. Background

A. Facts

1. The Parties

In this Action, NWS describes itself as a “staffing company” whose employees “[t]ypically” provide technology consulting services. (Videotaped Examination of David Shaun Neal (“Neal Tr.”) 21-22.) Those services “include technology consulting, technology outsourcing, telephone consulting, network support, network monitoring, mobile- application development and many other technology related services.” (Decl. of Martin B. Schwimmer, Esq. in Supp. of Def.’s Mot. for Summ. J. (“Schwimmer Decl. I”) Ex. 7 (“Pl.’s Resps. to Def.’s First Set of In-terrogs.”) No. 12 (Dkt. No. 69).) NWS asserts that it “has advertised and publicized” the Mark for “over 8 years and in 4 countries,” currently “provides services to 15 companies,” “has done business with over 50 companies under the [M]ark [since July of 2004],” and has “offered its services under the [M]ark to hundreds of thousands of companies since 2004.” {Id. at Nos. 10, 12.) Together with its wholly-owned subsidiaries, NWS allegedly employs over 100 people, (FAC ¶ 9), and, since 2007, has generated “about a million and a half to [two] million a year” in revenue, (Neal Tr. 147). Plaintiff allegedly “maintains a website, regularly engages in direct mail marketing and retains a full time sales staff which regularly solicits business for clients' in several US states and worldwide.” (FAC ¶ 8.) NWS asserts that, “[i]t is widely known and recognized in the industry.” (Pl.’s Resps. to Def.’s First Set of Interrogs, No. 10.) ■

In the First Amended Complaint, Plaintiff alleges that it is a Wyoming Corporation that “provides business services to large, multinational corporations worldwide and has done so since June of 2004.” (FAC ¶¶ 3, 7.) It is undisputed, however, that “[t]here is no documentary evidence in the record that any purported predecessor-in-interest to Plaintiff existed prior to 2007.” (Def.’s Rule 56.1 Statement of Material Facts Not in Dispute in'Supp. of Its Mot. for Summ. J. (“Def.’s 56.1”) ¶29 (Dkt. No. 71); PL’s Resp. to Def.’s Statement of Material Facts Not in Dispute and PL’s Statement of Material Facts Not.in Dispute in Supp. of PL’s Cross-Mot. for Summ. J. Pursuant tn Local Rule 56.1 (“PL’s 56.1”) ¶ 29 (Dkt. No. 80); see also Schwimmer Decl. I ¶ 23.) A Certificate of Incorporation from the Office of the Secretary of State of Wyoming identifies that on May 25, 2010, a “New World Solutions, Inc.”, was incorporated in Wyoming (the “2010 Wyoming Entity”); Shaun Neal (“Neal”), NWS’s principal,. testified that NWS was also registered in Delaware «in 2007 (the “2007 Delaware Entity”); a nunc for tunc document dated November 24, 2008 states that a “New World Solutions, Inc.” was incorporated under the laws of the State of Delaware on March 26, 2007; and Neal identifies himself and Robert Coyne (“Coyne”) as having been the co-owners of both the 2007 Delaware Entity and the 2010 Wyoming Entity, until the Fall of 2012, when Neal became the sole owner of the Wyoming Entity. (Defi’s 56.1 ¶¶ 29-33; PL’s 56.1 ' ¶¶ 29-3.3; see. also Schwimmer Decl. I Exs. 11 — 12.)

Defendant contends that “[t]here is no evidence identifying ownership of either the 2007 Delaware Entity or the .2010 Wyoming Entity, or that any assets were transferred from the 2004 ‘d/b/a/’ to the 2007 Delaware Entity, or from the 2007 Delaware Entity to the 2010 Wyoming Entity.” (Def.’s 56.1 ¶ 35.) Plaintiff disputes this. (PL’s 56.1 ¶ 35.) Plaintiff’s account of its history and activities — which is strongly contested by Defendant — proceeds as follows: beginning in 2004,' a “d/b/a” run jointly by Neal and Coyne (the “d/b/a entity”) “performed ... services” using the name “New World Solutions.” (See Neal Tr. 27-28; see also Decl. of David Shaun Neal in Supp. of PL’s Mem. of Law in Opp’n to Def.’s Mot. for Summ. J. and in Supp. of Pl.’s Mem. of Law for Summ. J. (“Neal Decl.”) ¶ 40 (Dkt. No. 79) (stating that between 2004 and the date of his declaration, Neal was employed full time at NWS).) Coyne and Neal split the revenues from the d/b/a entity. (Neal Tr. 91.) Although Coyne claims that his “business activities with ... Neal commenced in early 2004 and continued until late 2012, [when he] transferred all of [his] interest in [NWS] to ... Neal,” he cites to nothing in the record to support this assertion, and in particular that he had business activities with Neal in 2004. (Decl. of Robert F. Coyne in Supp. of PL’s Mem. of Law in Opp’n to Def.’s Mot. for Summ. J. and in Supp. of PL’s Mem. of Law for Summ. J. (“Coyne Decl. I”) ¶ 10 (Dkt. No. 78).)

NWS has no documentary, evidence that establishes the existence of the d/b/a entity, or its promotional activities, services, or revenues, allegedly because Neal had a “simultaneous failure of the primary and the secondary hard drive” on his computer in 2007 and because Plaintiff was unable to locate any documents relating to the d/b/a entity or its- activities by any other means. (See Neal Tr. 28-29, 32, 37-38, 143-45, 147-49, 159.) However, Neal testified that the d/b/a entity engaged in marketing activities, which consisted of (1) “one-on-one sales techniques,” which means that Coyne and Neal “cold call[ed]” and e-mailed potential clients, and (2) sending promotional postcards to a mailing list obtained from a company called American Business Lists. (Id. at 31-32.) .Neal also testified that he recalled three clients of the d/b/a entity in 2004, namely “Merrill Lynch ... a real estate company in Arizona ;.. [and] an institutional foreign exchange trader.” (Id. at 36-37.) Moreover, although Neal stated in his deposition that NWS’s revenue figures were “a few hundred thousand” in 2004, “over a -million,” in 2005-06, and “about a million and a half to 2 million a year” in 2007-12, Neal has testified that he. does not have any documents to support NWS’s revenue for 2004-07 because “they were on the crash on the hard drive;” (Def.’s 56.1 ¶¶ 57-58; Neal- Tr. 147-48.)

The “original legal entity” for NWS was created on March 26, 2007, when Coyne allegedly incorporated New World Solutions, Inc. as a Delaware C Corporation. (Neal Tr. 27; see also Schwimmer Decl. I Ex. 11; Coyne Decl. I ¶ 3; id. at Ex. 1.) Coyne dissolved the 2007 Delaware Entity-on July 12, 2010 and transferred all of its assets and liabilities, including all. of the rights to'the trade name New World Solutions, to the 2010 Wyoming Entity, which was formed on May 25, 2010. (Coyne Decl. I ¶¶ 5, 7-9; id. at Exs. 2-3.) Coyne and Neal each owned 50% of the Delaware and Wyoming entities, but on December 6, 2012, Coyne transferred to Neal the entirety of his interest in NWS so that, at present, Neal is the'“managing partner” and “sole shareholder” of NWS. (Neal Decl. ¶¶ 1-2; Coyne Decl. I ¶¶4, 6, 10.) Coyne does not cite to anything in the record to support this transfer. Neal states that he “determined that [he] possesses] evidence of ownership of New World Solutions, Inc[.] (DE), New World Solutions, Inc[.] (WY)[,] and the transfers of ownership between [himself] and ... Coyne which occurred during the relevant time of this [A]ction.” (Neal Decl. ¶ 41.) Neal also states that he “testified that ... Coyne possesses th[e]se records, however [he does] not believe that any request was made by [Defendant to ... Coyne for any records.” (Id. ¶ 41.) In other words, there yet again are no documents that support Coyne’s or Neal’s statements.

NameMedia is a Delaware Corporation with headquarters in Waltham, Massachusetts. (FAC ¶ 4.) NameMedia offers a marketplace for purchase and sale of domain names by and for others and also purchases and sells domain names for its own accounts. (Def.’s 56.1 ¶ 72; Pl.’s 56.1 ¶ 72; Schwimmer Decl. I ¶ 42; Decl. of Erik S. Zilinek, Esq. in Supp; of Def.’s Mot. for Summ. J. (“Zilinek Decl. I”) ¶ 5 (Dkt. No. 70).).Although NameMedia states that its “policy is to register and maintain only those domain names that incorporate common words or phrases, descriptive terms, and/or words to which NameMedia considers no single party ha,s exclusive rights, if any,” (Def.’s 56.1 ¶ 73; Zilinek Decl. I ¶3), Plaintiff disputes this, noting that despite its requests, Defendant provided no evidence of this policy, (Pl.’s 56.1 ¶ 73). Na-meMedia “monetizes” some of its domain names by displaying Google AdWords and advertisements, links to Google ads on a holding .page, and solicitations for offers to purchase its domain names. (Def.’s 56.1 ¶ 74; PL’s 56.1 ¶ 74;/ Zilinek Decl. I ¶ 6; Schwimmer Decl. I ¶43.) NameMedia’s website states: ‘We start with our inventory óf more than 900,000 domains — the single largest portfolio of domain names for sale.” (PL’s 56.1 ¶81; Def.’s Rule 56.1(B) Counter Statement to PL’s Rule 56.1(A) Statement-of’Material Facts Not in Dispute in Supp. of PL’s Cross-Mot. for Summ. J. (“Def.’s Reply 56.1”) ¶81 (Dkt. No. 92); Neal Decl. "¶ 44; id. at Ex. 19.)

According to Defendant it “uses a method known as' ’robot exclusion’ to prevent indexing of its holding pages by search engines.” (Def.’s 56.1 ¶¶ 9, 75; Zilinek Decl. I ¶4.) Plaintiff disputes this and claims, instead, that Defendant encourages search engines to crawl its sites. (PL’s 56.1 ¶¶ 9, 75, 80; Neal Decl. ¶¶ 7-11.) Defendant, in turn, claims that it would be cost prohibitive for NameMedia to crawl for keywords in the manner and for the purpose that Plaintiff allfeges and would put it out of business. (Def.’s Reply 56.1 ¶ 80.) Plaintiff further points out that there is no evidence in the record to establish that Defendant conducts any bona fide business in the name of New World Solutions or in the name of the approximately 1,000,000 other names for which it has registered domains. (Pl.’s 56.1 ¶¶ 77-78; Decl. of Ronald S. Kossar in Supp. of Pl.’s Mem. of Law in Opp’n to Def.’s Mot. for Sumrn. J. and‘in Supp. of PL’s Mem. of'Law For Summ. J. (“Kossar Decl.”) ¶¶ 11-12 (Dkt. No. 77).) Defendant disputes this, stating that Na-meMedia “is in the business of acquiring, developing!)] and Marketing Internet domain names,” and “offers a marketplace for ■ purchase arid sale of domain names by and for others.” (Def.’s Réply 56.1' ¶¶ 77-78.) '

2. The Domain,Name

On March 26, 2005, NameMedia registered the Domain Name. ([Deri’s 56.1 ¶ 7; PL’s 56.1 ¶ 7; Schwimmer Decl. I ¶ 3; id. at Ex. 1.) When NameMedia registered the Domain Name, it was unaware,of NWS, (Deri’s 56.11Í8; PL’s 56.1 ¶8; Zilinek Decl. I ¶ 9), and indeed it is undisputed that the first time NameMedia learned of NWS’s existence was on June 28, 2010, when Neal contacted NameMedia seeking a price quote for the Domain Name, (Def.’s 56.1 ¶ 10; PL’s 56.1 ¶ 10; Zilinek Decl. I ¶11). NameMedia claims that “in approximately 2006, [it] searched its entire portfolio of nearly one million domain names to ensure that it had not registered domain names that infringed upon any third party’s exclusive rights in or to words or .phrases that were incorporated into said domain names,” and that the search “did:not.iden- ■ tify any party who could assert rights in or to the NEW; , WORLD SOLUTIONS mark.” (Def.’s 56.1 ¶ 12; Zilinek Decl. I ¶ ,9.) Plaintiff disputes this, explaining that NameMedia “has failed to enter any evidence into the record of any such ’search’ it ever performed and has failed to specify what methodology was applied and how it determined that the mark newworldsolu-tions was noninfringing.” (PL’s 56.1 ¶ 12; Kossar Decl. ¶ 9.)

Moreover, while NameMedia maintains that it did not register the Domain Name with the intent to disrupt NWS’s business, to keep NWS from having a domain name that incorporates its purported trademark, or to confuse customers seeking to find NWS’s website, (Deri’s 56.1 ¶ 11; Zilinek Decl. I ¶ 10), Plaintiff claims that Na-meMedia employs “optimization” of its domain names “specifically designed to divert traffic, and confuse consumers,’’ (PL’s 56.1 ¶ 11; Kossar Decl. ¶ 4; Neal. Tr. 119-29, 325-336); The Parties do "not dispute that “[c]urrently, as well as at all times since NameMedia registered the Domain Name, the website to which the Domain Name resolves ■ displays keyword advertisements.” (Deri’s 56.1 ¶ 12;' PL’s 56.1 ¶ 12.) Plaintiff also points out that while the record is devoid of any proof that Defendant provides any bona fide goods or services in relation to “Technology outsourcing,” “Ma-nda outsourcing,” or “technology consulting” under the trade name New World Solutions, on June 29, 2012, the website www.newworldsolutions.com displayed those phrases. (PL’s 56.1 ¶¶ 85-86; Neal Decl. ¶ 5; id. at Ex. 2; Kossar Decl. ¶ 11.) Defendant does not dispute that its website contained' these phrases, but does dispute that it does not offer any of those services. (Deri’s Reply 56.1 ¶¶ 85-86.)

Finally, Plaintiff alleges that “the sole purpose of the registration of the [D]omain [N]ame .. is to divert traffic to the website of ... Defendant.” (Def.’s 56.1 ¶24; PL’s 56.1 ¶ 24; FAC ¶ 16.) Neal testified that after he “started to dig,” it led him to say “oh, [Defendant has] this policy where they look at [NWS], they go to Google or Alta Vista or whatever and find the resulting websites that are top hits for [NWS], and then they go through those links and go to those websites and grab the key words off those websites and put those key words on their own websites.” (Neal Tr. 331-32.) Defendant attempts to summarize this testimony in its 56.1 Statement,. (Def.’s 56.1 ¶25), and Plaintiff objects to Defendant’s characterization, stating that “[t]he testimony speaks for itself,” (Pl.’s 56.1 ¶ 25). In any event, when Neal was asked during his deposition if he had any evidence that the purpose ofithe registration of the Domain Name was to divert traffic to the website of Defendant, , he testified that he did hot and, stated that he “only suspected that there was some mechanism that was diverting the traffic or that it was optimizing key. words on [NameMedia’s] website based upon [NWS’s] domain name.” (Neal Tr. 332, 335; Def.’s 56.1 ¶¶ 26-27; PL’s 56.1 ¶¶ 26-27.)

3. NWS’s Interaction with NameMedia

NWS first learned of NameMedia on or about June 21, 2007. (Def.’s 56.1' ¶ 13; PL’s 56.1 ¶ 13; Schwimmer Decl. I ¶ 9; PL’s Resps. to Def.’s First Set of Interrogs. No. 3.) On June 28, 2010, Neal contacted a NameMedia salesperson for the first time, seeking a price quote for the Domain Name. (Defi’s 56.1 ¶ 14; PL’s' 56.1 If 14; Zilinek Deck I ¶ 11.) That same day, Na-meMedia responded by e-mail to Neal, informing him that the Domain Name was for sale at $2,588.00. (Def.’s 56.1 ¶ 15; PL’s 56.1 ¶ 15; Zilinek Decl. I ¶ 12; id. at Ex. B.) Neal did not respond to NameMedia’s email. (Defi’s 56.1 ¶ 16; PL’s 56.1 ¶ 16; Zili-nek Decl. I ¶ 13.)

4. Registration and Use of the Mark

Approximately four hours after Na-meMedia e-mailed Neal its price quote for the Domain Name, Neal filed an.application with .the United States Patent and Trademark Office (the “USPTO”) to register the Mark in the Principal Register. (Defi’s 56.1 ¶ 16; PL’s 56.1 1U6; Zilinek Decl. I ¶ 13; id. at Ex. C.) In its June 28, 2010 Application to the USPTO, NWS described the services it provides as- “[computer hardware and software consulting services; [information technology consultation; [services for maintenance.of computer software; [and] [software .design and development,” and stated that its first use of the Mark, and its first use of the Mark in commerce,, occurred “[a]t least as early as [June 21, 2007].” (Schwimmer Decl. I Ex. 18.) On July 27, 2010, Neal emailed NameMedia, stating that “New World Solutions,- LLC”. had “filed for a Trademark for” the NWS Mark, had used the Mark “in trade ... for a number of years,” and that, upon “final registration” of the Mark, NWS would bring an action against NameMedia for injunctive and -declaratory relief but would “agree to settle th[e] matter out of court for $200 upon transference of the domain to [NWS].” (Defi’s 56.1 ¶ 17; PL’s 56.1 ¶ 17; Zilinek Decl. I ¶ 14; id. at Ex. D.)

On February 15, 2011, the USPTO issued the Mark Registration to Plaintiff. (Def.’s 56.1 ¶ 18; PL’s 56.1 ¶ 18; see also PL’s Resps. to Def.’s First Set of Inter-rogs. No. 10; Zilinek Decl. I ¶ 15; id, at Ex. E.) The USPTO Registration Certificate for “New World Solutions” lists the same services as NWS’s application, and lists June 21, 2007 as the date of the first use of the Mark and the date of the first use of the Mark in commerce. (Def.’s 56.1 ¶ 18; PL’s 56.1 ¶ 18; see also Ziiinek Decl. I ¶ 15; id. at Ex. E.)

On March 18, 2011 — approximately one month after the USPTO issued NWS’s Registration — Coyne emailed NameMedia stating that he was counsel for Plaintiff and asserting that NameMedia’s registration of the Domain Name infringed on NWS’s service mark. (Def.’s 56.1 ¶ 20; PL’s 56.1 ¶ 20; Zilinek Deck I ¶ 16; id. at Ex. F.) Coyne further stated that failure to transfer ownership of the Domain Name to NWS would result in a “civil action being brought against [NameMedia].” (Def.’s 56.1 ¶ 20; PL's 56.1 ¶20; Zilinek Deel. I ¶ 16; id. at Ex. F.) On March 25, 2011, Coyne emailed Erik Zilinek (“Zilinek”), Associate General Counsel for NameMe-dia, stating that he was “authorized [by NWS] to proceed with legal action.” (Def.’s 56.1 ¶ 21; Ph’s 56.1 ¶21; Zilinek Deck I ¶ 17; id. at Ex. G.) Zilinek answered by letter dated the same day, (Def.’s 56.1 ¶ 22; Ph’s 56.1 ¶ 22; Zilinek Deck I ¶ 18; id. at Ex. H), to which Coyne responded that “we will be proceeding with the aforementioned litigation,” (Def.’s 56.1 IT 23; Pb’s 56.1 ¶ 23; Zilinek Deck I ¶ 19; id. at Ex. I).

5. New World Solutions as a Common Name

In its 56.1 Statement, under the heading “’New World Solutions’ is a Common Business Name, Trademark, Service Mark[,] and/or Domain' Name,” Defendant points out that: (i) on February 1, 1996, a New World Solutions, Inc. was incorporated in the State of New York, (Def.’s 56.1 ¶ 59; Ph’s 56.1 ¶ 59; Schwimmer Deck I ¶ 8; id. at Ex. 6), (ii) there is a company named New World Solutions of Fairfax, VA, which has a website at www.newworld solutions.com, (Def.’s 56.1 ¶ 60; Ph’s 56.1 ¶ 60), (iii) there is a company named New World Solutions, Inc. of Huntsville, AL, which has a website at wwwmewworldsoh com, (Defc’a 56.1 ¶ 61; PL’s 56.1 ¶ 61), (iv) there is a company named New World Solutions of Smithtown, NY, which has a website at www.newws.com, (Defi’s 56.1 ¶ 62; PL’s 56.1 ¶ 62), (v) there is a company named New World Solutions of West Kill, NY, (Def.’s 56.1 ¶ 63; PL’s 56.1 ¶ 63), and (vi) there is a company named New World Solutions, LLC, (Def.’s 56.1 ¶64; PL’s 56.1 If 64). Plaintiff is mot affiliated with any of these companies. (Def.’s 56.1 ¶¶ 59-64; PL’s 56.1 ¶¶ 59-64.)

B. Procedural History

On April- 11, 2011,- NWS filed suit against NameMedia in New York State Supreme Court, (Kossar Deck Ex. 1), and NameMedia removed thé Action to this Court on April 22, 2011, (Dkt. No. 1). On April. 3, 2012, NWS filed an Amended Complaint, asserting four claims against NameMedia: (1) federal trademark dilution in violation of 15 U.S.C. § 1125(c), (FAC ¶¶ 22-27); (2) cybersquatting in violation of 15 U.S.C. § 1125(d), (id. ¶¶ 28-33); (3) deceptive acts and false advertising under NYGBL §§ 349 and 350, (id. ¶¶ 34-38); and (4) trademark dilution under NYGBL § 360-1, (id. ¶¶ 39-44). In turn, NameMe-dia asserted two counterclaims against NWS, seeking (1) a declaratory judgment of the invalidity and unenforceability of the Mark Registration pursuant to 15 U.S.C. § 1119, (Def.’s Counterclaims ¶¶ 7-22), and (2) a declaratory judgment' that NWS is liable to NameMedia “for all [ ] damages incurred as a result of Plaintiffs meritless enforcement of [the] [Registration,” pursuant, to 15 U.S.C. § 1120, (id. ¶¶ 23-30). In addition, NameMedia requests an Order pursuant to 15 U.S.C. § 1117(a) declaring this matter to be an “exceptional case,” thereby entitling NameMedia to litigation expenses. (Id. at Prayer for Relief.)

Pursuant to'the Motion Scheduling Order entered by the Court on April 18, 2013, (Dkt. No. 61), Defendant filed its Motion for Summary Judgment and accompanying papers on May 24, 2013, (Dkt. Nos. 68-72), and Plaintiff filed its Cross-Motion for Summary Judgment and accompanying papers on June 28, 2013, (Dkt. Nos. 76-81). On July 19, 2013, Defendant filed a Motion To Strike documents that Plaintiff submitted with its Cross-Motion for Summary Judgment, and accompanying papers, (Dkt. Nos. 87-90), as well as its opposition papers to Plaintiffs Cross-Motion for Summary Judgment, (Dkt. Nos.). Plaintiff, in turn, filed a Cross-Motion To Strike documents Defendant submitted in connection with its Motion To Strike, and accompanying papers, on August 2, 2013. (Dkt; Nos. 94-97.) On August 9, 2013, Defendant filed its opposition papers to Plaintiffs Cross-Motion To Strike. (Dkt. Nos. 98-99.) The Court heard oral argument on all of the pending Motions on January 14, 2014. (jSee January 14, 2014 Hearing Transcript (Dkt. No. 106).)

II. Discussion

A. The Motions To Strike

NameMedia moves to strike several exhibits and portions of declarations that Plaintiff submitted.in its Motion for Summary Judgment. (See Def.’s Notice of Mot. To Exclude and Strike Evid. Pursuant to Fed. R. Civ. P. 37 and 56 (Dkt. No. 87).) Plaintiff, in turn, seeks to strike certain evidence submitted in connection with Defendant’s Motion to Strike. (Pl.’s Notice of Cross-Mot. to .Strike (Dkt. No. 94).)

“Because a decision on the motion to strike may affect [a] movant’s ability to prevail on summary judgment, it is appropriate to consider the Motionfs] [T]o Strike prior to the [Parties’] Motion[s] for Summary Judgment.” Century Pac., Inc. v. Hilton Hotels Corp., 528 F.Supp.2d 206, 213 (S.D.N.Y.2007) (alteration and internal quotation marks omitted), aff'd, 354 Fed. Appx. 496 (2d Cir.2009).

1. Applicable' Law

a. Rules 26 and 37

Rule 26(a) of the. Federal Rules of Civil Procedure requires parties to provide, among other things, “the name ... of each individual likely to have discoverable information ... that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). Moreover, parties must provide “a copy — or a description by category and location — of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(l)(A)(ii). Under this Rule, “use” includes any use “to support a motion, or at trial.” Emmpresa Cubana Del Tabaco v. Culbro Corp., 213 F.R.D. 151, 159 (S.D.N.Y.2003) (internal quotation marks omitted); see also Fleet Capital Corp. v. Yamaha Motor Corp., U.S.A., No. 01-CV-1047, 2002 WL 31108380, at *1 (S.D.N.Y. Sept. 23, 2002) (same).

“Several provisions of the Federal Rules of Civil Procedure authorize a court to impose sanctions for untimely, incomplete, or misleading responses during discovery.” Markey v. Lapolla Indus. Inc., No. 12-CV-4622, 2015 WL 5027522, at *16 (E.D.N.Y. Aug. 25, 2015). As relevant here, Rule 37(c) provides in part that:

If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the co.urt, on motion and after giving an opportunity to be heard ... may order payment of the reasonable- expenses, including attorney’s fees, caused by the failure .....

Fed. R. Civ. P. 37(c)(1). “Where.... the nature of the alleged breach of a discovery obligation is the non-production of evidence, a district court has broad discretion in fashioning an appropriate sanction .....” Residential Funding Corp. v. De-George Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002); see also Markey, 2015 WL 5027522, at *16 (same).' “Rule 37(c)(1) is intended to prevent the practice of ’sandbagging’ an opposing party with new evidence.” Capitol Records, LLC v. Escape Media Grp., Inc., No. 12-CV-6646, 2015 WL 1402049, at *21 (S.D.N.Y. Mar. 25, 2015) (internal quotation marks omitted). Moreover, sanctions are appropriate under Federal Rule of Civil Procedure- 37(d) when a party fails to attend his .or her own deposition. See In re Durand, No. 07-CV-5037, 2008 WL 4282601, at *5 (E.D.N.Y. Sept. 16, 2008).

“The party seeking Rule ' 37 sanctions bears the burden of showing that the opposing party failed to timely disclose information.” Markey, 2015 WL 5027522, at *16 (internal quotation marks omitted). To determine whether preclusion is warranted under Rule 37, a court must consider “(1) the party’s explanation for the failure to comply with the disclosure requirement; (2) the importance of, the tes- . timony of the precluded witnesses; (3) the prejudice suffered by the: opposing party as a result of having to prepare to meet the new [evidence]; and (4) the possibility of a continuance.” Design Strategy, Inc. v. Davis, 469 F.3d 284, 296 (2d Cir.2006) (alterations and internal quotation marks omitted) (quoting Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir.2006)) (the “Patterson Factors”); see also Richmond v. Gen. Nutrition. Ctrs. Inc., No. 08-CV-3577, 2012 WL 762307, at *6 (S.D.N.Y. Mar. 9, 2012) (same). Moreover, “although a ‘bad-faith’ violation of— Rule 26 is not required in order to exclude evidence pursuant to Rule 37, it can be taken into account as part of the party’s explanation for its failure to comply.’’ Design Strategy, 469 F.3d at 296; see also S.E.C. v. CKB168 Holdings, Ltd., No. 13-CV-5584, 2015 WL 4872553, at *4 (E.D.N.Y. Jan. 7, 2015) (same), adopted in part by 2015 WL 4872555 (E.D.N.Y. Aug. 12, 2015). Finally, it is worth' noting that preclusion is not a mandatory sanction. See Design Strategy, 469 F.3d at 297-98. Indeed, it bears emphasizing that “[p]reclusion is a ‘harsh remedy’ that ‘should be imposed only in rare situations.’” CKB168 Holdings, Ltd., 2015 WL 4872553, at *4 (quoting Izzo v. ING Life Ins. & Annuity, Co., 235 F.R.D. 177, 186 (E.D.N.Y.2005)).

b. Admissibility

Federal Rule of Civil Procedure 56(c)(4) requires that, in a summary judgment motion, an “affidavit or declaration used to support--or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Therefore, “[a] court may ‘strike portions of an affidavit that are not based upon the affiant’s personal knowledge, contain inadmissible hearsayL] or make generalized and conclusory statements.’” Rockport Co. v. Deer Stags, Inc., 65 F.Supp.2d 189, 191 (S.D.N.Y.1999) (quoting Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir.1999));. see also Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.2004) (noting that inadmissible statements in affidavits submitted in support of a summary judgment motion are incapable of raising material disputes of fact); Newport Elecs., Inc. v. Newport Corp., 157 F.Supp.2d 202, 208 (D.Conn. 2001) (explaining that “[a] motion to strike is the correct vehicle to challenge .materials submitted in connection with a summary judgment motion [and is appropriate if] affidavits ... contain inadmissible hearsay or are not made on the basis, of personal knowledge^] ... if depositions contain testimony that contains hearsay, speculation^] or conclusory statements^] ... [or if] documentary evidence ... has not been properly authenticated” and collecting cases (citations omitted)).

Rule 56(e), in turn, provides that “[i]f a party fails to properly support an assertion of fact ... the court may: (1) give an opportunity to properly support ... the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials .., show.that the mov-ant is entitled to it; or (4) issue any other appropriate order.” Similarly, Rule 56.1(d) of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (“Local Rule 56.1”) requires that each assertion made by the movant or opponent in their Rule 56.1 Statements “must'be followed by citation to evidence which would be admissible.” Accordingly, “only admissible evidence” need be considered on summary judgment; in addition, the “principles governing admissibility of evidence do not change on a motion for summary judgment.” Porter v. Quarantillo, 722 F.3d 94, 97 (2d Cir.2013) (alteration and internal quotation marks omitted). Moreover, if a party fails to properly support a statement by an adequate citation to the record, the Court may properly disregard that assertion. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73-74 (2d Cir.2001) (noting that “district courts in the Southern and Eastern Districts of New York have interpreted current Local Rule 56.1 to provide that where there are no citations or where the cited materials do not support the factual assertions in the [statements, the [c]ourt is free to disregard the' assertion” and collecting cases (alteration and internal quotation marks omitted)).

2. Application

á. NameMedia’s Motion to Strike

i. The Coyne Declaration

NameMedia moves to preclude Coyne’s declaration (the “Coyne Declaration”) in its entirety. (Def.’s Mem. in Supp. of Def.’s Mot. to Exclude and Strike Pursuant to Fed. R. Civ. P. 37 and 56 (“Def.’s Strike Mem.”) 15 (Dkt. No. 90).) NameMedia argues that the Court should, pursuant to Rules 37(b)(2) and 37(d), strike all evidence submitted by Coyne because he failed to appear for his deposition and failed to respond to NameMedia’s requests to reschedule that deposition. (Id. at 1-2, 7, 15-16.) NWS disputes this, stating that “[o]n 11/29/2012, a fax was sent from Coyne Legal Group to counsel for Defendant,” which stated that Coyne “would make himself available for a deposition,” (Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Strike and in Supp. of PL’s Cross-Mot. to Strike and in Further Supp. of PL’s Mot. for Summ. J. (“PL’s Strike Mem.”) 2 (Dkt. No. 95); see also Decl. of Robert F. Coyne in. Supp. of PL’s Mem. of Law in Opp’n to Def.’s Mot. To Strike and in Supp. of PL’s Cross-Mot. to Strike and in Further Supp. of PL’s Mot. For Summ. J. (“Coyne Decl. II”) ¶ 1 (Dkt. No. 96); id. at Ex. 1 (“November Fax”)), and that Na-meMedia, not NWS, “failed to reschedule the Coyne deposition prior to the close of discovery,” (PL’s Strike Mem. 2). In the alternative, NameMedia argues that the Court should, pursuant to Fed. R. Civ. P. 37(c), strike Exhibits 1 and 3 to the Coyne Declaration because they are responsive to NameMedia’s document requests, but were first produced by NWS after the close of discovery and in opposition to NameMedia’s Motion for Summary Judgment and/or in support of Plaintiffs Cross-Motion for Summary Judgment. (Def.’s Strike Mem. 16.) NWS does not directly respond to this argument.

Although precluding evidence is a “drastic remedy” that “should be exercised with caution,” DVL, Inc. v. Gen. Elec. Co., 811 F.Supp.2d 579, 589 (N.D.N.Y.2010) aff'd sub nom. DVL, Inc. v. Niagara Mohawk Power Corp., 490 Fed.Appx. 378 (2d Cir.2012), the Court finds that precluding all evidence submitted by Coyne is warranted. NameMedia duly noticed Coyne for a deposition on October 12, 2012. (Decl. of Martin B. Schwimmer, Esq. in Supp. of Def.’s Mot. To Exclude and Strike Evid. Pursuant to Fed. R. Civ. P. 37 and 56 (“Schwimmer Decl. II”) Ex. F (Dkt. No. 88).) By letter dated October 9, 2012, then-counsel for NWS informed counsel for Na-meMedia that “Mr. Coyne is in Manila and has been for some time; I will advise when I get more information on his return.” (Schwimmer Decl. II Ex. G.) By letter dated October 15, 2012 — the close of fact discovery pursuant to the Court’s Case Management and Scheduling Order, (see Dkt. No. 14; Dkt. (minute entry for Aug. 8, 2012)) — counsel for NameMedia wrote “[w]e understand from our discussion with you and ... Neal at his deposition on October [11, 2012] that ... Coyne’s exact whereabouts, as well as the timing of his expected return to the United States, are both presently unknown. We further understand that you will advise us when ... Coyne returns to the United States. Until that time, we note that ... Coyne has failed to timely appear for a duly-noticed deposition. Please accept this letter as our formal reservation of rights concerning same.” (Schwimmer Decl. II Ex. H.) There is no dispute that Coyne was never deposed. (See, Def.’s Strike Mem. 7; PL’s Strike Mem. 2.)

Turning to whether preclusion of Coyne’s evidence is warranted, the Court finds that the first factor — “the party’s explanation for the failure to comply with the disclosure requirement,” or in this case for his failure to appear for or reschedule his deposition, Design Strategy, 469 F.3d at 296 (alteration and internal quotation marks omitted), weighs in favor of preclusion. To begin, Coyne initiated this litigation, so there was no basis for him to duck the deposition. See de Herbstein v. Dabbah Sec. Corp., 169 F.R.D. 36, 40 (S.D.N.Y. 1996) (“A party who brings an action presumptively obligates [himself] to sit for a deposition.”). NWS claims that Coyne “clearly stated that he would make himself available for a deposition.” (Pl.’s Strike Mem. 2.) To support this contention, Coyne submits the November Fax, which is a letter dated November 29, 2012 to Defendant’s counsel that he. allegedly sent via fax. (Coyne Deck II. Ex. 1.) In the November Fax, Coyne states:

[Y]our allegation that I am in possession of material facts in this matter is completely false. I have virtually no knowledge of the facts in this case whatsoev-er____ As you are already aware my availability as a witness is extremely limited. However I am willing to accommodate your request for examination before trial by way of a telephonic deposition. Alternatively, I will agree to interrogatories in excess of 25 to be served upon me. However, I will reiterate that I have very little knowledge about any of the relevant facts in this matter. Mr, Neal was solely in charge of the registration of this name and the maintenance of the domain name and websites. Mr. Neal was also the primary organizer of all of the marketing that the company engaged in. Finally, Mr. Neal was solely responsible for the pre-incorporation marketing efforts of New World Solutions; therefore I have no testimony whatsoever to offer in that regard____ Given the foregoing, it is unclear to me what purpose any in person deposition would serve as there is ho evidence on the record that I possess any knowledge of material facts.

(Id. at unnumbered 2.) Contrary to the November Fax’s representation, however, the evidence and "-Coyne’s course of conduct in this Action shows that Coyne was intimately involved with NWS and this litigation. Coyne instituted this Action on behalf of NWS and, according to Neal’s testimony, provided the content of the responses to at lea'st some of NameMedia’s interrogatories. (Neal Tr. 67.) Further, evidence submitted by NWS contradicts Coyne’s characterization of his limited role and relevant knowledge — including, Neal’s deposition testimony that Coyne and Neal were both “engaged in” and responsible for the alleged marketing'and business activities of the d/b/a entity, (see id. at 31, 34), Coyne’s declaration that'he was a 50% owner of at least two of the NWS entities and was “associated with” and conducted business activities on behalf of NWS for eight years, (see Coyne Deck I. ¶¶ 4, 6,10, 12), and NWS’s statement that “Coyne has knowledge regarding all claims which are the subject matter of the current litigation,” (PL’s Resps. to Def.’s First Set of Interrogs. No. 18). Additionally, it is worth noting that the November Fax was sent over a month after discovery in this case closed and there is no evidence that NWS requested an extension of the final discovery deadline. Accordingly, the Court finds the representation that Coyne “clearly stated that he would make himself available for a deposition” to be disingenuous at best. (See Ph’s Strike Mem. 2.)

Moreover, there, is no evidence that Defendant received the November Fax. Na-meMedia asserts that it first received the fax on August 2,2013, when Coyne submitted a copy in connection with- NWS’s briefing on the-'motions to strike. (Deck of Martin B. Schwimmer, Esq. in Further Supp. of Def.’s Mot; To Exclude and Strike Pursuant to Fed. R. Civ. P. 37 and 56 and in Opp’n to .PL’s Cross-Mot. To Strike (“Schwimmer Decl. Ill”) ¶13 (Dkt. No. 99).) NameMedia’s counsel has submitted search results from its fax log, including'a search which shows that, between January 1,'2012 and August 9, 2013, counsel for NameMedia received zero faxes from the fax number on the Coyne Legal Croup letterhead of the. November Fax. .-(See id. ¶ 15; id. at Ex. ,7.) NWS’s e-maibrespond-ing to NameMedia’s August 2, 2013 request for .authentication that the November Fax was transmitted fails to confirm the same. (See -Schwimmer Deck III ¶ 14; id. at Ex. 6.) The .only evidence in the record, then, suggests that the alleged November Fax was not transmitted or received. In sum, because Coyne is a party, offers no explanation for his failure -to timely appear for his deposition or request an extension of the discovery schedule, and his claim that h,e made himself available for a deposition by faxing Defendant’s counsel on November 12, 2012 is precarious, at best, the first Patterson factor weighs in favor of preclusion.

As to the second factor, although neither Party makes an .explicit argument as to the relative importance of the Coyne Declaration or of the inability of Defendant to depose Coyne due to his failure to appear for a. deposition before the close .of discovery, (see Def.’s Strike Mem. 15-16; Pl.’s Strike Mem. 2), the importance of the Coyne,Declaration and,his absent, deposition testimony are apparent. In his declaration, Coyne describes his involvement in creating and dissolving the 2007 Delaware Entity, creating the 2010 Wyoming Entity, his 50%' ownership in' both' entities, his general involvement in NWS, and his business relationship with Neal. (See generally Coyne Decl. I.) Coyne-attaches exhibits to support these statements. (See id.) This information is clearly relevant to the claims in this Action. Moreover, the importance of Defendants ability to depose Coyne in light of this information is; obvious. For similar reasons,-the third factor-prejudice to NameMedia — weighs in' favor of preclusion. NameMedia had no opportunity prior to the Motions for Summary Judgment to question Coyne about his assertions of fact in his declaration, including his' statements that-he and Neal conducted continuous business activities under the “New World Solutions” mark between 2004 and 2012, (See Coyne Decl. I ¶ 10),- or his statements regarding the alleged continuity between the d/b/a, Delaware, and Wyoming entities, (see id. ¶¶3-9; id. at Exs. 1-3). The third Patterson factor thus cuts strongly in favor of precluding evidence submitted by Coyne. See DVL, Inc., 811 F.Supp.2d at 591 (granting a motion to strike expert' declarations submitted after the close of discovery because “[admitting the ... [declarations for the purpose of the [c]ourt’s determination of the various summary judgment [mjotions would greatly prejudice the [djefendahts”). ‘

. Turning to the fourth factor, NameMe-dia argues that “because the parties are in the middle of the current summary judgment briefing schedule, there is no ‘possibility of a continuance.’” (Def.’s Strike Mem. 16 (quoting Schiller v. City of N.Y., Nos. 04-CV-7922, 04-CV-7921, 2008 WL 4525341, at *7 (S.D.N.Y. Oct. 9, 2008)).). Although the Court, could theoretically reopen discovery, order Coyne to appear for a deposition, and permit the Parties to resubmit motions for summary judgment, doing so would “serve no purpose except to encourage parties to disregard the Court’s scheduling order .... [and would] result in further delay.” Lidle v. Cirrus Design Corp., No. 08-CV-1253, 2009 WL 4907201, at *7-8 (S.D.N.Y. Dec. 18, 2009). In addition, at the time that Coyne submitted his declaration, discovery had been closed for-nearly a year. See Design Strategy, 469 F.3d at 297 (explaining that “weighing-heavily on both'the prejudice and possibility of continuance factors was the fact that discovery had been closed for approximately one and a half years” (internal quotation marks omitted)); 523 IP LLC v. CureMD.Com, 48 F.Supp.3d 600, 638 (S.D.N.Y.2014) (explaining that “to reopen discovery ... a year after it -ha[d] closed, would seem to be an unjustified drain on the resources of the parties and the [c]ourt and weighs in favor of preclusion”).

Finally, it is worth noting that although preclusion under Rule 37 is warranted in the absence of a finding of bad faith, it is difficult to conceive how NWS’s purported founder, owner, principal, and lawyer could bring this Action and then in good faith fail to appear for a duly noticed deposition, fail to reschedule the same in a timely manner, and disavow that he has knowlr edge of material facts, only to submit a declaration in connection with the Summary Judgment Motions with highly relevant information when there is no possibility, absent the re-opening of discovery, in which he could have been cross-examined on the information that he provides. The Court finds that the only logical inference in light of these facts, in the absence of another explanation,. isr that Coyne’s failure to appear for his deposition was in bad faith, which strengthens the conclusion that this evidence should be precluded. See Design Strategy, 469 F.3d at 296 (holding that Rule 37(c)(1) “does not require a showing of bad faith” but that bad faith “can be taken into account as part of the party’s explanation for its failure to comply”); Gagasoules v. MBF Leasing LLC, 286 F.R.D. 205, 214 (E.D.N.Y.2012) (“ ‘Rule 37(d) makes it explicit that a party properly served has an absolute duty to respond, that is, to present himself for the taking of his deposition, ... and that the court in which the action is pending may enforce this duty by imposing sanctions for its violation.’ ” (alteration in .original) (quoting Penthouse Int'l Ltd. v. Playboy Enters., Inc., 663 F.2d 371, 390 (2d Cir. 1981))). Accordingly, NameMedia’s Motion to Strike the Coyne Declaration and the accompanying Exhibits pursuant to Rule 37(d) is granted.

ii. The Neal Exhibits and the Kossar Declaration .

NameMedia also moves to strike Exhibits 1, 2, 4-11 and 17-19 to the Neal Declaration (the “Neal Exhibits”), paragraphs 15 through 30 of the Neal Declaration, and portions , of Exhibit 3 to the Kossar Declaration, which contain the relevant excerpts from Neal’s' Deposition. NameMedia moves to, strike the Neal Exhibits pursuant to Fed; R. Civ. P. 37(c), arguing that the challenged exhibits are “responsive to NameMedia’s prior-served document requests and should have been disclosed during discovery,” but’were instead “first ... produced ... in support of [NWS’s] summary judgment papers on June 28, 2013.” (Def.’s Strike. Mem. 1, 3.) NameMedia moves to strike portions of both the Neal Declaration and Exhibit 3 to the Kossar Declaration pursuant to Fed. R. Civ. P. 56(c) and (e), arguing that the evidence contained therein is inadmissible because it is irrelevant and is not based on Neal’s personal knowledge. (Id, at 17-19.)

a. Neal Exhibits 1 and 2

Neal Exhibits 1 and 2 are screen-shots of the website located at wwwméw worldsolutions.com allegedly accessed by Neal on March 1, 2012 and June 29, 2012, respectively. (Neal Decl. ¶¶4-5; id. at Exs. 1-2.) During discovery, NWS made a single 91-page document production that included only one screenshot of the website located at www.newworldsolutions. com. (See Def.’s Strike Mem. 8-9; Schwim-mer Decl. II ¶ 3.) There is a marked difference in the content displayed on the holding page screenshot produced by NWS in discovery and in the content of Neal Exhibits 1 and 2. (Compare Schwimmer Decl. I Ex. 19, at 00088, with Neal Decl. Exs.1-2.) The former displays as “Related Searches” a miscellaneous array of “New World” phrases, (e.g., “New World Hotel Beijing”), whereat Neal Exhibits 1 and 2 show “Related Searches” primarily related to: debt relief and technology outsourcing. NWS uses -Neal Exhibits 1 and 2;to support its allegation that (-1) NameMedia has engaged in deceptive acts and -false advertising, under ’the NYGBL, and (2)'NameMedia has intentionally diluted trademarks by extracting keywords .from websites returned in searches for keywords relevant to Na-meMedia’s domain names and incorporating, those-keywords into its website. (PL’s Mem. of Law in Opp’n- to Def.’s Mot. for Summ. J. and in Supp, of PL’s Cross-Mot. for Summ. J. (“PL’s Summ. J. Mem.”) 8-9 (Dkt. No. 81).)

Preclusion of these exhibits is warranted. First, NWS offers no convincing explanation for its failure to produce the Neal Exhibits during discovery, despite the fact that Defendant requested documents concerning Internet searches conducted on • behalf of Plaintiff or by Plaintiff concerning the Mark, documents concerning the Domain Name, documents NWS intended to rely upon on the instant Action, all documents supporting Plaintiffs Complaint, and all-documents refuting Defendant’s Answer. (Schwimmer Decl. II ¶¶ 4, 10; see Schwimmer Decl. I Ex. 10 Combined First Set of Reqs. for Docs, by Def. and Pl.’s Resps. Thereto (“Reqs. for Docs.”) Nos. 12, 14, 26, 33-35.) Plaintiff argues that Neal Exhibits 1 and 2 should be considered because they respond to Na-meMedia’s assertions — made for the first time in connection with NameMedia’s Motion for Summary Judgment — that Na-meMedia (1) employs a “robot exclusion” policy, (2) “perform[s] ’searches’ of their name inventory,” and (3), “do[es] not knowingly register other’s trade names.” (Pl.’s Strike Mem. 2-3.) This argument does not, however, apply to these particular exhibits, which only support NWS’s allegation that NameMedia uses a “keyword optimization policy” to mislead consumers and dilute trademarks. The first factor, then, weighs in favor of preclusion. See 523 IP LLC, 48 F.Supp.3d at 638 (precluding evidence where the defendant “d[id] not even explain why it produced the documents responsive to the [relevant] subpoena until after the close of discovery,” and did “not attempt to argue that its failure to disclose was ‘substantially justified’ ”).

The second factor weighs against preclusion because in general evidence, of a policy to mislead customers and dilute trademarks would have been relevant to establishing Plaintiffs claims, as explained below. Nevertheless, the third factor cuts in favor of preclusion. NameMedia is prejudiced by the post-discovery introduction of Neal Exhibits 1 and 2 because they differ in relevant respects from the holding page screenshot produced by NWS in discovery. Although Plaintiff argues that Defendant is not prejudiced because “Plaintiff is simply using ... Defendant’s own materials to rebut ... Defendant’s own statements,” (Pl.’s, Strike Mem. 2-3), Defendant disputes that the website printouts are its “own materials,” explaining that NameMedia “operates close to a million websites that can change on a frequent basis,” and, therefore, the multiple screenshots are not properly considered its own materials. (Mem. in Further Supp. of Def.’s. Mot. To Exclude and Strike Pursuant to Fed. R. Civ. P. 37 and 56 and in Opp’n to PL’s Cross-Mot. To Strike (“Def.’s Strike Reply”) 15 (Dkt. No. 98).) The Court agrees that the screenshots are not Defendant’s “own materials,” but rather were documents that were in the control and possession of Plaintiff based on websites that Neal accessed on specific days. By producing these documents after the close of discovery, NameMedia did not have an ’ opportunity to question Neal about the exhibits or introduce evidence to refute the conclusions he draws from the exhibits. See 523 IP LLC, 48 F.Supp.3d, at 638 (explaining that the prejudice to the plaintiff. from the failure to disclose was significant because it was the defendant’s “obligation to identify evidence underlying its defenses and the witnesses who may possess such evidence,” and because it did not, the plaintiff did not have the opportunity to depose the relevant people or seek its own discovery).

Fourth, as explained above, a continuance is not warranted at this stage of the proceedings. Because three of the four Patterson factors weigh in favor of preclusion, these exhibits are precluded. See 523 IP LLC, 48 F.Supp.3d at 638 (precluding evidence when three of the four factors favor-preclusion).

b. Neal Exhibits 4-6

Neal Exhibits 4 and 5 are HTML source code, for the www.newworldsolutions.com website, which Neal allegedly accessed on March 1, 2012 and June 25, 2013, respectively. (Neal Decl. ¶¶ 7-10; id. at Exs. 4-5.) Neal Exhibit 6 is a printout from a website of the “W3C org specification regarding the ROBOTS HTML META-TAG,” which Neal allegedly accessed on June 25, 2013. (Neal Decl. ¶ 11; id. at Ex. 6.) NWS relies on Neal Exhibits 4, 5 and 6 to argue that, contrary to its representation otherwise, NameMedia does not use a robot exclusion policy to prevent search engines from indexing their website, but “actually encourages [indexing].” (Pl.’s Summ. J. Mem. 11-12; see also Pl.’s 56,1 ¶ 9.)

The Patterson factors counsel against excluding Neal Exhibits 4, 5,- and 6. First, NWS offers no explanation of its failure to produce Exhibits 4, 5, and 6 during discovery despite its control and possession over those documents and their responsiveness to Defendant’s interrogatories. Nevertheless, its argument that the belated submission of the Neal Exhibits is justified applies to these exhibits because they respond to NameMedia’s claim— made for the first time in connection with NameMedia’s Motion for Summary Judgment — that NameMedia employs a “robot exclusion” policy. (Pl.’s Strike Mem. 2-3.) NameMedia defends the timing of Zilinek’s statements, claiming that summary judgment presented its “first and only opportunity] in this action to use ... Zilinek’s knowledge and expertise regarding Na-meMedia’s business policies” — including the alleged “robot exclusion” policy — because NWS failed to properly notice Zili-nek for a deposition. (Def.’s Strike Reply 5.) NWS’s apparent failure to vigorously prosecute this action notwithstanding, its explanation for the belated submission of Neal Exhibits 4, 5, and 6‘ is reasonable. Second, while the Court is not at all convinced that Exhibits 4, 5, and 6 are important to Plaintiffs claims because its dilution claims ultimately fail on other grounds, as explained below, in light of Zilinek’s statements, Plaintiff should be allowed to rebut his claims. Third, in its Motion To Strike briefing, NameMedia has provided a' substantive response to Neal Exhibits 4, 5 and 6, which indicates that the late submission did not substantially prejudice NameMedia. In any event, the robot exclusion policy, or lack thereof, is an immaterial dispute of fact for the resolution of the Summary Judgment Motions and, therefore, there is no apparent prejudice/Accordingly, Defendant’s Motion To Strike Neal Exhibits 4, 5, and 6 is denied.

c, Neal Exhibits 7-11

"Neal Exhibits 7 and 8 are printouts of webpages from www.smartname.com, which Neal allegedly accessed on Jun¿ 25, 2013 and June 28, 2013, respectively. (Neal Decl. ¶¶ 12-13; id. at Exs. 7-8.) Neal’Exhibit 9 is allegedly the result of Neal’s June 25, 2013 search for “newworldsolu-tions.com” on www.who.is. (Neal Decl. ¶. 14; id. at Ex. 9.) NWS cites Neal Exhibits 7, 8 and 9 to support its assertion that NameMedia “employs ‘optimization’ of its domain names specifically designed to divert traffic and confuse consumers.” (Pl.’s 56.1 ¶ 11; see also PL’s Summ. J. Mem. 8.) Neal Exhibit 10 is allegedly a printout from the URL www.domparison.com/ domain-name-price-comparison/, accessed on June 27, 2013, (Neal Decl. ¶ 31), which NWS uses to support its assertion that NameMedia’s price quote “was in excess of the out of pocket expenses to acquire the name,” (PL’s 56.1 ¶ 82), and was “unreasonable, exorbitante,] and extortionate,” (PL’s Summ. J. Mem. 7). Neal Exhibit 11 is allegedly a printout from the URL www. icann.org/en/help/dndr/udrp/policy, accessed on June 27, 2013, (Neal Decl. ¶ 32), which NWS cites as evidence ■ that Na-meMedia’s registration of the Domain Name and its price quote were in bad faith for purposes of the ACPA, (PL’s 56.1 ¶¶ 83-84; see also PL’s Summ. J. Mem. 7-8.)

The Patterson factors counsel in favor of excluding Neal Exhibits 7, 8, 9, 10, and 11 for substantially the same reasons they counsel in favor or excluding Neal Exhibits 1 and 2. In particular, there is no reasonable explanation for failing to produce those Exhibits during discovery, Plaintiff’s explanation as to its need to respond to evidence and/or explanations provided by Zilinek are inapplicable to these exhibits, and NameMedia is prejudiced by its inability to address or take discovery on these exhibits. Accordingly, Defendant’s Motion To Strike is granted as to Neal Exhibits 7, 8, 9,10, and 11.

d. Neal Exhibits 17-19- .

Neal Exhibits 17 through 19 are allegedly the “result[s]” of Neal’s accessing, on June 27, 2013, the websites at www.new worldsolutions.org, wwwmewworld-solutions.com,. and namemedia.com/our-business/domain-marketplaee/, respectively., (Neal Decl. ¶¶ 42 — 44'; id, at Exs. 17-19.) NWS cites Neal Exhibits 17 and 18 to rebut NameMedia’s assertions that two other organizations named “New World Solutions” maintain websites. (See Def.’s 56.1 ¶¶ 63-64; PL’s 56.1 ¶¶ 63-64.) NWS cites Neal Exhibit 19 as evidence that NameMedia admits that it “traffics in domain names.” (PL’s 56.1 ¶¶ 68, 81.) ,

The Patterson factors counsel against excluding Neal Exhibits 17 and 18. First, NameMedia first alleged the existence and websites of other organizations called “New World Solutions” in its Motion for Summary Judgment,' (see Def.’s 56.1 ¶¶ 59-64), which provides NWS with a reasonablé explanation for its post-discovery submission of Exhibits 17 and 18. Second, while the existence (or not) of two of the alleged websites does not-carry much weight with respect to whether the Mark is “famous” or- “distinctive” for purposes of Plaintiffs claims, it is relevant to that determination; Third, prejudice to Na-meMedia is de minimis especially because NameMedia first alleged the existence of other “New World Solutions” in its moving papers for Summary Judgment.

Conversely, Exhibit 19 should be excluded. NWS does not and cannot explain its failure to disclose the NameMedia website print-out. The statements about NameMe-dia’s business model do not provide essential evidence for any of the- claims at issue because thése claims are dismissed on grounds, as explained below, that make this evidence irrelevant, and NameMedia is prejudiced by its inability to address or take discovery regarding Exhibit 19.

e. Challenged Neal Testimony

The challenged portions of Neal’s deposition and declaration relate to NameMe-dia’s alleged keyword optimization policy and Neal’s attempts to “verify” the existence of the same by entering keywords relevant to NWS’s business activities into the search box on the website at www.new worldsblutions.com, and then allegedly discovering that those keywords newly appeared on that website. (See Neal Tr! 119, 121-125; Neal Decl. ¶¶ 15-30.) NWS argues that the “sole purpose” of the alleged keyword optimization policy is the “intentional dilution of rightful mark holders who own names which are the same or confusingly similar to the defendants!’] domain name.” (Pl.’s Summ. J. Mem. 9; see also PL’s 56.1 ¶¶ 68-69.)

NameMedia argues that Neal’s-testimony is irrelevant, and therefore inadmissible, under Federal Rule of Evidence 402, because the keyword optimization policy which Neal allegedly attempted to verify is, according to Neal’s deposition testimony, the stated policy of a third ' party, “[which Plaintiff] thinkfs] is a subsidiary of NameMedia.” (Def.’s Strike Mem. 18; Neal Tr. 120.) NameMedia further argues- that Neal is not competent to testify about- a third party’s alleged keyword optimization policy because (1) NWS did not disclose Neal as an expert witness, as required under Fed. R. Civ. P. 26(a)(2), and (2) Neal’s own testimony establishes that he has no “personal knowledge” of the alleged policy, as required under Federal Rule of Evidence 602. (Def.’s Strike Mem. 19.) In addition, NameMedia contends that Neal misunderstands the computer source code, which -NWS contends proves that NameMedia “not only allows search engines to index their websites, but actually encourages them to do so.” (Def.’s Mem. in Opp’n to PL’s Cross-Mot. for Summ. J. and in Further Supp. of Def.’s Mot. for Summ. J. (“Def.’s Summ. J. Reply”) 11 n.ll (Dkt. No. 91); PL’s Summ. J. Mem. 11-12.)

NameMedia is correct that the “optimization policy” allegedly described on the website of an entity that NWS “think[s] is a subsidiary of NameMedia” is not relevant to this Action, and that Neal’s testimony about the same is, therefore, inadmissible under Federal Rule of Evidence 402. In his deposition, Neal based his conclusion that “[i]t appearfs] ... that [www.newworldsolutions.com] was looking at our website or the Coyne Legal Group or Credit Legal Group website ... and extracting key words and placing them on their website” on “looking at the [possible] subsidiary’s ... documented policy that they perform searches on key words as part of their domain names, look at the websites which have those key words in them and extract key words from those websites and place them on their own websites.” (N