Coty Inc. v. Excell Brands, LLC (277 F. Supp. 3d 425, 2017)

United States District Court for the Southern District of New York 2017-09-18

Commerce and Trade Conservation

Citations

Full opinion text

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Imitation may well be the sincerest form of flattery, but if taken too far it can also be costly. Plaintiffs in this case—Coty, Inc., Coty B.V., Calvin Klein Trademark Trust, Calvin Klein, Inc., Calvin Klein Cosmetic Corporation, Vera Wang Licensing LLC, V.E.W., Ltd., and Ate My Heart Inc. (collectively, “Coty”)—are the producers or distributors of high-quality fragrances associated with well-known brands, including Calvin Klein, Vera Wang, and Lady Gaga. Defendant, Excell Brands, LLC (“Excell”), seeking to capitalize on the success of Coty’s well-known fragrances, produced cheap “versions” of Coty’s fragrances, with similar names (for example, “Possession” for “Obsession”) and nearly identical packaging. Compounding matters, Excell prominently included on its packaging Coty’s own marks, albeit under words to the effect of “Our Version Of’ in comparatively smaller text.

Embittered rather than flattered, Coty brought various intellectual property claims—for trademark infringement and unfair competition, trademark dilution, and false advertising, under federal and New York law—against Excell. In March 2017, the Court held a three-day bench trial on Coty’s claims and Excell’s defenses, after which the parties submitted additional post-trial materials. In this Opinion and Order, the Court provides its findings of fact and conclusions of law. At bottom, the Court concludes that E.xcell’s imitation crossed the line from flattery to infringement, dilution, unfair competition, and false advertising—but did not cross the line far enough to constitute counterfeiting within the meaning of federal law. Further, the Court finds that Coty is entitled to both injunctive relief and monetary relief-in the form of Excell’s profits—but not to enhanced monetary relief. Finally, the Court concludes that the case is not an “exceptional” one warranting attorney’s fees and prejudgment interest.

FINDINGS OF FACT

Based on the evidence and testimony presented at trial, the Court makes the following findings of fact by way of background. The Court includes additional factual findings in the context of the legal analysis below.

A. Coty’s Fragrances

Coty manufactures, distributes, and markets high-end fragrances and other beauty products. (Pis.’ Ex. 252 (“Tuil-Tor-res Direct”) ¶¶ 7, 10; Pis.’ Ex. 82). To the extent relevant here, Coty is either the owner or .the exclusive licensee of a fragrance portfolio that includes the Calvin Klein, Vera Wang, Lady Gaga, and Joop! fragrance brands. (Docket No. 91 (“Stipulated Facts”) ¶¶6, 8-10; Pis.’ Ex. 258 (“Conklin Direct”) ¶¶ 2, 11). In total, there are twenty-one specific fragrances at issue in this case, each of which is branded with a house mark (such as Calvin Klein, Yera Wang, Lady Gaga, and Joop!), as well as a product mark (such as ETERNITY, Lovestruck, and FAME) that distinguishes the fragrances sold under a particular house mark. (Conklin Direct ¶ ll). In addition to the house and product marks, each of Coty’s fragrances can be identified by its packaging features, or trade dress, which also serves to identify the source of the product. Collectively, the house mark, product mark, and trade dress indisputably serve as source identifiers for Coty’s products,

Coty has invested—and continues to invest—a significant amount of time and money creating, branding, launching, and marketing each of the fragrances in its portfolio, (See Pis.’ Ex. 251 (“Singer Direct”) ¶¶ 4-29 (detailing the lengthy process for developing and launching a fragrance and its packaging)),. For example, developing a fragrance’s “juice”—the scented liquid applied to the skin—is a laborious process that involves sourcing the proper essential oils from fragrance houses and extensive laboratory testing, (Id. ¶¶ 15-16). In addition, development of a fragrance’s packaging can be a multi-year process, as Coty tries to create new designs that will differentiate its fragrances from those of its competitors, (Id. ¶ 11). Once the fragrance and packaging are produced, Coty also engages in significant and expensive marketing and advertising campaigns for each of its fragrances. (Id. ¶¶ 18-24). For example, between 2002 and 2015, Coty spent over $658 million advertising and promoting its Calvin Klein fragrances, over $114 million advertising and promoting its Vera Wang fragrances, over $14 million advertising and promoting its Lady Gaga fragrances, and over $13 million advertising and promoting its Joop! fragrances. (Pis.’ Ex. 78).

As a result of these efforts, Coty’s fragrances are some of the most popular and recognizable in the fragrance market. Between 2002 and 2015, Coty’s net sales for its Calvin Klein fragrances totaled over $2.2 billion, for its Vera Wang products over $296 million, for its Lady Gaga products over $28 million, and for its Joop! line over $188 million. (Pis.’ Ex. 78). Coty’s products have also received significant media attention. (See, e.g., Pis.’ Exs. 100-5 through 100-9,122, 138-3). Some of Coty’s products are so successful that the company has produced “flankers” for the products—that is, new fragrances that share certain characteristics and branding with the original fragrance. (Singer Direct ¶¶ 30-32). For example, Coty has produced flankers for several of Calvin Klein’s pillar fragrances: Dark Obsession (flanking Obsession), Eternity Aqua (flanking Eternity), CK One Shock (flanking CK One), and CK Free Blue (flanking CK Free). (Id.).

B. Excell’s Fragrances

Excell’s business model is, to put it mildly, a bit different. Until December 2016, Excell concededly manufactured and distributed knockoff fragrances. To the extent relevant here, one of its collections— designated the “Diamond Collection”—offered “versions” of Calvin Klein, Vera Wang, Lady Gaga, and Joop! fragrances. (Stipulated Facts ¶ 33). Excell did not receive authorization from Coty to sell any of its fragrances, and it has not paid Coty any royalties or other payments in connection with its sale of those fragrances. (Id. ¶¶ 29-30).

Excell explained the process by which it decided which branded fragrances to mimic for its Diamond Collection as follows: “First, it [sought] original fragrances with a high retail price to create a differential between the retail prices of its alternative fragrance and the original product. Second, it [sought] a product that [would] be understood by its customer base of ‘lower income, sometimes ethnic customers.’ ” (Id. ¶ 38). After selecting a fragrance to emulate, Excell then chose a product name for its alternative fragrance that would evoke the name of the original fragrance. (Ferul-lo Dep. 107 (“We choose names that are similar but different obviously from the original, we want to have the customer understand what they are buying.”)). In creating the juice for its alternative fragrances, Excell did not make any meaningful effort to replicate the scent of Coty’s products. Instead, using only their own noses and reviews of the original fragrances, Excell employees made broad recommendations to the company’s supplier in India, which then manufactured the alternative fragrances and packaging. (Ferullo Dep. 228 (“If an item is citrusee or if it is sweet we want the version of to be citrusee or sweet.”)). Excell often sent its suppliers the original fragrance (or a picture of the fragrance) it sought to emulate along with instructions on how to emulate it. (Ferullo Dep. 33-36; Pis.’ Exs. 190, 198). Before a fragrance went into production, however, Excell typically reviewed, revised, and approved the bottle, box, and juice. (Ferullo Dep. 130-31, 134). Indeed, the company frequently made changes to the products so that the packaging of its knockoffs would more closely resemble Coty’s original branded fragrances. (See, e.g., Pis.’ Exs. 190, 194; Stipulated Facts ¶ 28). Notwithstanding its involvement in the process, however, Excell had no firsthand knowledge of the chemical composition or ingredients of its products; nor did it have any meaningful quality assurance program. (Docket No. 65 at 6-7, 10; Fer-ullo Dep. 181 ( The salespeople will decide whether or not the product matches the design that we had discussed, if the box has a nice appearance to it, if the bottle looks great, if the juice smells good. That is it really.”)).

Appendix A depicts the packaging of each Diamond Collection fragrance at issue in this case alongside the packaging of the Coty fragrance Excell sought to emulate. Significantly, on the front of each of its Diamond Collection fragrance boxes, Exeell included a legend stating that the fragrance was “Our Version Of’ the relevant Coty product. (Stipulated Facts ¶ 20). For example, Excell’s Serenity fragrance had the following legend on its front:

(PL’s Ex. 56). Relatedly, on the back of each Excell box appeared the words “Not Associated With The Makers Of,” followed by reference to the relevant Coty product. (Stipulated Facts ¶ 89), Again, by way of example, the following is a picture of the text from the Serenity fragrance packaging:

(PI. s Ex. 56). Significantly, in both legends, Excell replicated Coty’s relevant house and product marks. Moreover, Coty’s marks were depicted more prominently than the other text. On the top of each box, in comparatively smaller lettering, Excell included its own brand name: Diamond Collection Luxurious Fragrances. (See id.).

As a general matter, Excell did not advertise or market its products directly to consumers. (See Pis.’ Ex. 174). Instead, the company sold its Diamond Collection products primarily to traditional retailers and discount chains, such as Kmart, Dollar General, and Ross Stores. (Conklin Direct ¶¶25, 28). Its products can also be purchased through online marketplaces, including Amazon and eBay. (Id. ¶ 26).

C. Excell’s Current Status

In 2015, several of Exeell’s principals and employees were indicted in the United States District Court for the District of New Jersey -with money laundering and other offenses. (See Pis,’ Ex. 171 (“Criminal Complaint”)). The gravamen of the charges is that the defendants laundered money through Excell for the benefit of certain Latin American drug cartels. (Bronsnick Dep. Resp. 73; Criminal Complaint). One former Excell employee, Wayne Bronsnick, pleaded guilty. (Bron-snick Dep. Resp. 121). As of the tidal in this matter, charges remained pending against, among others, Excell’s President, Wayne Hamerling, and its Wholesale Sales Manager, Luis Rodriguez. (See Criminal Complaint). Not surprisingly, therefore, all three invoked their privilege against self-incrimination in these proceedings and refused to answer any substantive questions, either during discovery or at trial. (See, e.g., Bronsnick Dep. Resp. 37, 43; Rodriguez Dep. 29-53; Hamerling Dep. 40-45).

In part because of these criminal charges, Excell shut down its business operations and ceased selling its fragrances in December 2016. (Tr. 383-84 (testimony of Andrew Pfau that, “[s]ince early December [Excell] has ... no inventory, has not sold anything, has not conducted any business other than winding down operations”); Tr. 391 (Pfau acknowledging that the criminal charges influenced the decision to shut down the company)). It is allegedly now in the process of “winding down operations,” although it has not yet fully dissolved. (Id. at 383-84). Notably, the company's decision to cease its business operations was entirely unrelated to the instant lawsuit. (Id. at 384-85 (testimony of Pfau that “[the lawsuit] really didn’t have any [impact on the decision to cease operations]. It would have happened regardless.”)).

CONCLUSIONS OF LAW

Coty presses three categories of claims against Excell. First, Coty brings trademark infringement claims under both federal and New York law. (Docket No. 92 (“Pis.’ Mem.”) 3-17). Second, Coty alleges that Excell’s use of its marks constitutes trademark dilution under both federal and New York law. (Id. at 17-20). And third, Coty contends that Excell’s use of the “Our Version Of’ Legend on its fragrance packaging gives rise to a false advertising claim under federal and New York law. (Id. 20—23). Excell, for its part, invokes the doctrine of nominative fair use, and claims the affirmative defense of laches. (Docket No. 98 (“Def.’s Mem.”) 14, 36). Because the latter is Defendant’s sole affirmative defense, the Court pauses briefly to address it first. The Court then turns to Cot/s claims, followed by a discussion of remedies.

A. ExcelPs Laches Defense

The basic elements of laches are well established: “(1) the plaintiff knew of the defendant’s misconduct; (2) the plaintiff inexcusably delayed in taking action; and (3) the defendant was prejudiced by the delay.” Ikelionwu v. United States, 150 F.3d 233, 237 (2d Cir. 1998). Applying those elements here, Excell’s laches argument fails for three' reasons. First, “it is well established that laches is not a defense against injunctive relief when the defendant intended the infringement,” Hermes Int’l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104, 107 (2d Cir. 2000) (internal quotation marks omitted); Victorinox AG v. B & F Sys., Inc., 114 F.Supp.3d 132, 136 (S.D.N.Y. 2015) (“[A] laches defense is not available to a defendant who intentionally traded off the plaintiffs name and protected products.” (internal quotation marks and brackets omitted)). This “good-faith component of the laches doctrine is part of the fundar mental principle that he who comes into equity must come with clean hands.” Hermes, 219 F.3d at 107 (internal quotation marks omitted). As discussed in more depth below, the Court finds that Excell acted in bad faith and set out to intentionally infringe Cot^s source identifiers. (See Section B.2.e). It follows that laches is not available to Excell as a defense.

Second, and .in any event, the Court finds that Coty did not unreasonably delay in seeking to enforce its rights, as required for the laches defense. Significantly, Coty’s lawsuit was initiated on September 4, 2015, well within the applicable six-year statute of limitations. (See Docket No. 1 (“Complaint”); Def.’s Mem. 4 (noting that Excell was founded in April 2010)). Thus, “there is no presumption of laches and the burden remains on the defendant to prove the defense.” Conopco, Inc. v. Campbell Soup Co., 95 F.3d 187, 191 (2d Cir. 1996); see also Gross v. Bare Escentuals Beauty, Inc., 641 F.Supp.2d 175, 196 (S.D.N.Y. 2008) (“Since there is no statute of-limitation in the Lanham Act, courts apply the analogous statute of limitations from the forum state.... New York’s analogous state statute is the six-year statute of limitations for fraud.” (citation omitted)); cf. SCA Hygiene Prod. Aktiebolag v. First Quality Baby Prod., LLC, — U.S. -, 137 S.Ct. 954, 959, 197 L.Ed.2d 292 (2017) (“Laches ... cannot be invoked to bar legal relief in the face of a statute of limitations enacted by Congress.” (internal quotation marks and brackets omitted)). Moreover, Coty had '“no obligation to sue until the likelihood of confusion loom[ed] large and [its] right to protection [had] clearly ripened,” ProFitness Physical Therapy Ctr. v. Pro-Fit Orthopedic & Sports Physical Therapy P.C., 314 F.3d 62, 68 (2d Cir. 2002) (internal quotation marks omitted). Here, Coty demonstrated that Excell’s sales were relatively insignificant during its first few years of operation and that Excell’s marketing efforts ⅛ its retailers were less focused .on the Coty knockoffs during that time. (Pls.’ Exs. 244). Put another way, Coty was not aware of the full scope of Excell’s allegedly infringing conduct until later (and then reasonably delayed bringing suit in part to see how a related lawsuit, Polizzi v. Excel Brands LLC, 13-CV-6146 (S.D.N.Y.), proceeded. (Conklin Direct ¶39). Accordingly, the Court finds that Coty did not unreasonably delay bringing suit.

Finally, even if Excell could show unreasonable delay, it failed to produce evidence of prejudice. Prejudice “may be found where the junior user took affirmative steps to increase its use of the mark during and in reliance on the senior user’s period of delay, and that unwinding those actions would require it to reorganize its business or reeducate the public as to its product if restrained from using the mark.” Gucci Am., Inc. v. Guess?, Inc., 868 F.Supp.2d 207, 244 (S.D.N.Y. 2012) (internal quotation marks omitted); see also Conopeo, 95 F.3d at 192 (noting that prejudice may be found “when a defendant has changed his position in a way that would not have occurred if the plaintiff had not delayed” (internal quotation marks omitted)). In this case, Excell did not “change its position” in any manner due to Coty’s lawsuit. Indeed, by its own admission, the filing of the lawsuit had no effect on its operations. Excell continued to sell its knockoffs long after Plaintiffs filed suit. (Ferullo Dep. 79-80). And while it did cease producing the products at issue in December 2016, and is now in the processing of “winding down,” those developments were due to the criminal charges in New Jersey and the breakdown of negotiations to be acquired by a third party; as Excell conceded, this lawsuit had nothing to do with them. (See Docket No. 81; Tr. 384-85 (testimony of Pfau noting that Coty’s lawsuit had no effect on Excell’s decision to shut down its operations)). Put simply, any conceivable prejudice was mooted when Excell decided, for reasons unrelated to this case, to cease its operations and stop using its brands.

B. Trademark Infringement and Unfair Competition

The Court turns, then, to Coty’s trademark infringement claims under Sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(a), 1125(a), and its unfair competition claim under New York law. Section 32(1) of the Lanham Act prohibits the “use in commerce ... of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1114(l)(a). Section 43(a) prohibits the “use[] in commerce [of] any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which ... 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, services, or commercial activities by another person.” 15 U.S.C. § 1125(a)(1)(a). In this case, Coty alleges that Excell violated these provisions and the New York law of unfair competition by misappropriating, for each fragrance involved, Coty’s (1) house mark (e.g., Calvin Klein); (2) its product mark (e.g., OBSESSION); and (3) its trade dress, which “encompasses the design and appearance of the product together with all the elements making up the overall image that serves to identify the product presented to the consumer.” Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999 (2d Cir. 1997). (Docket No. 105 (“Pls.’ Resp. Mem.”) 1).

Courts analyze claims under Sections 32(1) and 43(a) of the Lanham Act by applying a “familiar two-prong test.” Gucci, 868 F.Supp.2d at 237 (internal quotation marks omitted). Courts use the same standards to evaluate unfair competition claims under New York law, except that a plaintiff must prove “bad faith” in order to prevail under New York common law. See, e.g., U.S. Polo Ass’n, Inc. v. PRL USA Holdings, Inc., 800 F.Supp.2d 515, 538 (S.D.N.Y. 2011); Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 155 F.Supp.2d 1, 25 (S.D.N.Y. 2001). The first prong of the test asks “whether the plaintiffs mark is entitled to protection.” Gucci, 868 F.Supp.2d at 237 (internal quotation marks omitted). A mark is entitled to protection if it is either inherently distinctive or has acquired distinctiveness through secondary meaning. See, e.g., Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 769, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). In the case of trade dress, the plaintiff must also demonstrate that the trade dress at issue is nonfunctional. See Fun-Damental, 111 F.3d at 999. Under the Lanham Act, an incontestable registration—defined as a mark that “has been in continuous use for five consecutive years” after the date of registration and is still being “use[d] in commerce”—is conclusive evidence of a plaintiff’s exclusive right to use the specific mark or trade dress, unless the defendant can establish one of the statute’s affirmative defenses (none of which, in light of the Court’s decision above regarding laches, is relevant here). 15 U.S.C. § 1065; see id. § 1115(b). Meanwhile, registrations that are not incontestable are still “prima facie evidence of the validity of the registered mark and ... of the registrant’s exclusive right to use the registered mark,” subject to defenses also not relevant here. Id. § 1115(a).

Absent federal registration, courts must assess where a particular mark or trade dress falls on Judge Friendly’s ascending spectrum of distinctiveness: generic, descriptive, suggestive, and arbitrary or fanciful. See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976); accord Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871 (2d Cir. 1986). Suggestive and arbitrary or fanciful marks are considered inherently distinctive and protected, but a descriptive mark will “be protected only if it has acquired secondary meaning.” Gruner + Jahr USA Publ’g v. Meredith Corp., 991 F.2d 1072, 1076 (2d Cir. 1993). Secondary meaning attaches to a mark when “the consuming public primarily associates the term with a particular source.” Bristol-Myers Squibb Co. v. McNeil-P.P.C., Inc., 973 F.2d 1033, 1040 (2d Cir. 1992). In analyzing secondary meaning, courts generally consider six factors: “(1) the senior user’s advertising and promotional expenses; (2) consumer studies linking the name to the source; (3) the senior user’s sales success; (4) third-party uses and attempts to plagiarize the mark; (5) length and exclusivity of the mark’s use; and (6) unsolicited media coverage of the products at issue.” Mobileye, Inc. v. Picitup Corp., 928 F.Supp.2d 759, 779 (S.D.N.Y. 2013) (internal quotation marks omitted).

The second prong of the infringement test asks whether the defendant’s “use of the mark is likely to cause consumer confusion as to the origin or sponsorship of the defendant’s goods.” Gucci, 868 F.Supp.2d at 237 (internal quotation marks omitted). Indeed, “[t]he crucial issue in an action for trademark infringement is whether there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.” Savin Corp. v. Savin Grp., 391 F.3d 439, 456 (2d Cir. 2004) (internal quotation marks and alterations omitted). Significantly, in addition to confusion arising at the point of sale, courts recognize, and Coty alleges, two other types of confusion: initial-interest and post-sale confusion. The former occurs when “potential consumers initially are attracted to the junior user’s mark by virtue of its similarity to the senior user’s mark, even though these consumers are not actually confused at the time of purchase.” Jordache Enters., Inc. v. Levi Strauss & Co., 841 F.Supp. 506, 514-15 (S.D.N.Y. 1993). That is, initial-interest confusion “creates initial customer interest, even if no final sale is completed as a result.” Clinique Labs., Inc. v. Dep Corp., 945 F.Supp. 547, 551 (S.D.N.Y; 1996); accord Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 264, 260 (2d Cir. 1987); see also, e.g., Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 365 F.Supp. 707, 717 (S.D.N.Y. 1973) (finding the value of Steinway’s trademark to be harmed where potential purchasers of Steinway pianos were initially interested in Grotrian-Steinweg pianos because of the name), aff'd 523 F.2d 1331, 1342 (2d Cir. 1975). By contrast, .post-sale confusion occurs (as its name suggests) after a sale is completed. See, e.g., Clinique, 945 F.Supp. at 551. Post-sale confusion may be present “when a manufacturer of knockoff goods offers consumers a cheap knockoff copy of the original manufacturer’s more expensive product, thus allowing a buyer to acquire the prestige of owning what appears to be the more expensive product.” Hermes, 219 F.3d at 108.

To determine whether there is a likelihood of confusion, courts in this Circuit have long applied the eight-factor balancing test first articulated by Judge Friendly in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir. 1961). The eight so-called Polaroid factors are: (1) the strength of the trademark; (2) the similarity of the marks; (3) the proximity of the products and their competitiveness with one another; (4) evidence that the senior user may “bridge the gap” by developing a product for sale in the market of the alleged infringer’s product; (6) evidence of actual consumer confusion; (6) evidence that the imitative mark was adopted in bad faith; (7) the respective quality of the products; and (8) the sophistication (or lack thereof) of consumers in the relevant market. See Star Indus., Inc. v. Bacardi & Co. Ltd., 412 F.3d 373, 384 (2d Cir. 2005). Application of the Polaroid test is “not mechanical, but rather, focuses on the ultimate question of whether, looking at the products in their totality, consumers are likely to be confused.” Id.

1. Protection of Coty’s Source Identifiers

As an initial matter, Coty’s source identifiers are plainly entitled to protection under the first prong of the infringement test. Notably, Excell concedes that—with one exception—all of “Plaintiff’s marks are distinctive.” (Def.’s Mem. 29). The one exception is the mark HOMME, a fragrance produced by Joop!, which, Excell argues, “means” men in French “and is descriptive.” (Def.’s Mem. 6). But Coty does not allege infringement of the HOMME mark on its own; instead, it alleges impermissible use of the HOMME mark in conjunction with the house mark Joop! and the cologne’s trade dress. Regardless, Excell’s descriptiveness argument falls short. The Second Circuit has explained that “[a] term is suggestive”—and thus inherently distinctive—“if it requires imagination, thought and perception to reach a conclusion as to the nature of goods.” Bernard v. Commerce Drug Co., 964 F.2d 1338, 1341 (2d Cir. 1992) (internal quotation marks omitted). By contrast, “[a] term is descriptive”'—and thus not inherently distinctive—“if it forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods.” Id. (internal quotation marks omitted) The fact that HOM-ME is French for “man” may or may not be known to the general consumer encountering the cologne, but either way it does not convey “an immediate idea of the ingredients, qualities or characteristics” of the fragrance at issue. Id. Instead, it “requires imagination, thought and perception to reach [the] conclusion” that HOMME is not just a cologne, but a cologne targeting men. French Transit, Ltd. v. Modem Coupon Sys., Inc., 818 F.Supp. 635, 637 (S.D.N.Y. 1993) (finding suggestiveness when “there is no evidence in- the record that the term ‘LE CRYSTAL NATUREL’-conveys the character or quality of plaintiffs product to persons who have never seen the product and who do not know what it is. We believe that the average consumer who has never heard of plaintiffs product would have to use his or her imagination to determine that LE CRYSTAL NATUREL is a body deodorant.”). The Court therefore concludes that all of Coty’s marks qualify for trademark protection.

Even without Excell’s concession as to the marks, Coty has established the distinctiveness of both the marks and trade dresses it seeks to protect in this case. Coty is seeking to enforce its exclusive rights in twenty-eight registered trademarks and trade dresses, twenty-one of which are the subject of incontestable registrations. Meanwhile, Coty’s seven registered trademarks that are not incontestable are presumed to be distinctive and, given that Excell does not present any evidence to rebut the presumption, are protected. See, e.g., Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871 (2d Cir. 1986) (“[Registered trademarks are presumed to be distinctive and should be afforded the utmost protection.”). In addition to these twenty-eight registered trademarks, Coty seeks to enforce its rights in two unregistered marks and thirteen unregistered trade dresses. (Pis.’ Mem. 5; Pis.’ Ex. 1). The two unregistered marks—LADY GAGA and LADY GAGA FAME—are descriptive marks that have plainly achieved secondary meaning as they function as distinctive source identifiers for the eponymous entertainer Lady Gaga and her fragrance line. That secondary meaning has attached to the Lady Gaga marks is not—and cannot be—disputed. (Def.’s Mem. 6; see also Tr. 83 (testimony of Robert Campbell, manager for Lady Gaga, describing her fame)). ■

Finally, contrary to Excell’s assertions, Coty’s thirteen unregistered trade dresses also satisfy the first prong of the infringement test. Courts assess a product’s “trade dress distinctiveness by looking at all its elements and considering the total impression the trade dress gives to the observer.” Fun-Damental, 111 F.3d at 1001. Because “the varieties of labels and packaging available to wholesalers and manufacturers are virtually unlimited ....,& product’s trade dress typically will be arbitrary or fanciful and meet the inherently distinctive requirement.” Id. at 1000. Here, Coty’s unregistered trade dresses all consist of original, detailed, and specific fragrance packaging combinations, and thus merit trade dress protection. For example, Coty seeks trade dress protection for its Calvin Klein ONE SHOCK fragrance, which combines (1) an opaque black bottle; (2) a black cap; (3) a CK mark displayed in standard Calvin Klein logo lettering in simple typeface on the center portion of both the bottle and the packaging; and (4) the SHOCK name displayed in uppercase letter in neon green graffiti typeface below the CK mark on both the bottle and packaging. (Pis.’ Ex. 1, at 5; see Appendix A). Although some individual features of a given fragrance— indeed, of all the fragrances Coty seeks to protect—may be common in the fragrance industry, “the impression given by all of [the features] in combination” is plainly inherently distinctive. Fun-Damental, 111 F.3d at 1001.

In arguing otherwise, Excell contends that Coty’s bottles constitute product design trade dress, not product packaging trade dress, and “are only protectable as trade dress upon a showing of acquired distinctiveness.” (Def.’s Mem. 21). It further argues that Coty is unable, to show that the color of its bottles has acquired secondary meaning. (Id.). But, in so arguing, Excell ignores the fact that, while any one “element of a trade dress individually pight not be inherently distinctive, it is the combination of elements that should be the focus of the distinctiveness inquiry.” Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 32 (2d Cir. 1995); cf. Versace v. Versace, No. 01-CV-9645 (PKL) (THK), 2003 WL 22023946, at *9 (S.D.N.Y. Aug. 27, 2003) (“Dissection of the mark into its various components is not appropriate, as it is the impression which the mark as a whole creates on the average reasonably prudent buyer and not the parts thereof which is important.” (internal quotation marks and brackets omitted)). More fundamentally, Exceil cites no support for its contention that Coty’s fragrance bottles should be deemed product design. (Def.’s Mem. 21). See Paddington Corp. v. Attiki Imps. & Dists., Inc., 996 F.2d 577, 584 (2d Cir. 1993) (finding the trade dress of an alcoholic beverage bottle inherently distinctive); Clinique, 945 F.Supp. at 559 (finding the trade dress of fragrance packaging inherently distinctive). Instead, Coty’s trade dresses are plainly product packaging in that they refer “to the manner in which [the fragrances are] ‘dressed up’ to go to market with a label, package, display card, and similar packaging elements.” Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1005 (2d Cir. 1995).

Finally, even if a showing of secondary meaning were required, Coty presented evidence of secondary meaning in the form of sales success, advertising expenditures, unsolicited media coverage showcasing its marks and trade dresses, consumer studies linking the names to the source, and Excell’s conscious imitation of its marks and trade dress. (See, e.g., Pis.’ Ex. 255 (“Rotter Direct”) ¶ 7 (testifying that Coty’s advertising and promotional expenditures for fiscal years 2006 through 2015 totaled over $658 million and its net sales during that period totaled over $2.2 billion for Calvin Klein and CK fragrances in the United States); Pis.’ Exs. 93-2, 93-7, 93-8, 121 (advertisements showcasing Coty’s trade dresses); Pis.’ Exs. 100-5 through 100-9, 122 (media coverage showcasing various trade dresses); Pis.’ Ex. 85-5 (highlighting consumer studies that underscore Plaintiffs’ brand recognition)). See, e.g., Clinique, 945 F.Supp. at 559 (finding that a skin care product had acquired secondary meaning after concluding that, some, but not all, of these factors were present). Indeed, Excell’s entire business model rests on the distinctiveness of Coty’s trade dress; the only reason Excell mimics Coty’s fragrances is because the latter’s products are distinctively identifiable in the minds of consumers. See N.Y.C. Triathlon, LLC v. NYC Triathlon Club, Inc., 704 F.Supp.2d 305, 330 (S.D.N.Y. 2010) (“[I]ntentional copying is persuasive evidence of secondary meaning.”).

2. Likelihood of Confusion

Thus, the Court turns to whether Excell’s knockoffs are likely to cause consumer confusion under the Polaroid test. Strictly speaking, that analysis calls for conlideration of each product and each mark individually. See, e.g., Gucci, 868 F.Supp.2d at 222 (noting that in analyzing infringement allegations, the court “must examine each mark in turn”). For purposes of many of the Polaroid factors, however, there is no meaningful difference among the relevant products and marks. Thus, for the sake of efficiency, the Court addresses the products and marks together where possible, as Excell itself does (see, e.g., Def. Mem. 20-23) and other courts have done in similar circumstances. See, e.g., Gucci, 868 F.Supp.2d at 246 (analyzing the various marks in tandem where the Polaroid factors were “the same with respect to each mark”). Elsewhere, the Court considers Excell’s arguments only with respect to the least infringing of the marks and products at issue, on the theory that if those arguments fall short as to those marks and products, it follows that they fall short as to the more infringing marks and products as well.

a. Strength of Marks and Trade Dresses

The first Polaroid factor—the strength of Coty’s marks and trade dresses— weighs heavily in Plaintiffs favor, substantially for the reasons discussed above in connection with the question of whether Coty’s marks are entitled to protection. Coty’s undisputed “commercial success” and sizeable “advertising expenditures” only “reinforce[ ] the strength” of its source identifiers. Charles of the Ritz Grp. Ltd. v. Quality King Distribs., Inc., 832 F.2d 1317, 1321 (2d Cir. 1987). In arguing otherwise, Excell asks the Court to consider each of the components of Coty’s fragrances—that is, its house marks, product marks, bottles, and trade dresses—in isolation. (Def.’s Mem. 16-20). For example, Excell cites a nearly twenty-year-old decision, Conopco, Inc. v. Cosmair, Inc., 49 F.Supp.2d 242, 248 (S.D.N.Y. 1999), to contend that Coty’s ETERNITY bottle, while being inherently distinctive, is a weak mark. (Def.’s Mem. 16-17). But these arguments miss the forest for the trees. The strength of Coty’s ETERNITY mark alone may be on the weak end of the spectrum, but Coty claims that Excell not only misappropriated its bottle design, but also its house mark (Calvin Klein), its fragrance mark (ETERNITY), and other components-of its trade dress. (Pis.’ Ex. 1, at 12). Taken together, these features weigh more heavily in Coty’s favor. Jim Beam Brands Co. v. Beamish & Crawford Ltd., 937 F.2d 729, 735 (2d Cir. 1991) (“[I]n determining the similarity of marks in an infringement action, a court must examine the visual appearance of each mark in the context of its use.”). Moreover, in the nearly eighteen years since the Court in Conopeo found Coty’s ETERNITY Bottle to be a weak mark, the mark has established significant secondary meaning. Between 2009 and 2015, for example, Coty’s net sales of Calvin Klein ETERNITY were $322,997,895. (Pis.’ Ex. 78).

Along the same lines, Excell disputes the strength of Coty’s CK One trade dress, contending that, notwithstanding the incontestable registration, its “basic flask shape is common in the fragrance industry and not distinctive.” (Def.’s Mem. 18). At trial, however, Excell provided no evidence to back up that claim. Even if it did, Excell’s argument would fail as Coty, once again, is not claiming trademark protection for its bottle shape alone; instead, it is claiming trademark infringement for the various components of its trade dress and for Excell’s use of its house and product marks. And “[bjecause in the context of trade dress the whole can be greater than, or at least different from, the sum of its parts, it is necessary to consider the combined articulated elements of [Coty’s CK One] trade dress to determine whether as an ensemble they form a distinctive presentation to consumers.” Best Cellars, Inc. v. Wine Made Simple, Inc., 320 F.Supp.2d 60, 71 (S.D.N.Y. 2003). Here, the bottle’s shape, in combination with the various other facets of its trade dress, establish Coty’s CK One trade dress as distinctive.

b. Similarity of Plaintiffs and Defendant’s Marks

The second Polaroid factor—. the similarity of Coty’s and Excell’s marks—also strongly favors Coty. Similarity is a holistic consideration'that turns on the marks’ sight, sound, and overall commercial impression under the totality of the circumstances. See, e.g., Malletier v. Burlington Coat Factory Warehouse Corp., 426 F.3d 532, 538 (2d Cir. 2005). Instead of merely conducting a “[s]ide by side comparison,” a court must assess “whether a consumer who is somewhat familiar with the plaintiffs mark would likely be confused when presented with defendant’s mark alone.” Clinique, 945 F.Supp. at 552. The same basic standard also applies for the trade dresses at issue. Fun-Damental, 111 F.3d at 1003.

In the Court’s view, Coty has persuasively demonstrated that Excell’s fragrances “blatantly cop[y]” its own. in a number of ways. Clinique, 945 F.Supp. at 551 (finding similarity when the defendant “manufactured almost identical soap, toners, eye creams, and moisturizers, with only minuscule and insignificant changes in packaging and color”). To list just a few, Excell’s products copy, with only slight differences, the names, typefaces, packaging, design, coloring, and bottle shapes of Coty’s fragrances. (See Appendix A). To provide one illustrative example: Excell’s SERENITY AQUA fragrance features a similar typeface, color, packaging, bottle shape, and, most obviously, name, to Coty’s ETERNITY AQUA. (Pis.’ Ex. 1, at 13). In addition, for each fragrance at issue here, Excell’s packaging includes two exact replicas of Coty’s house mark (e.g., Calvin Klein) and product mark (e.g., ETERNITY AQUA) as part of the “Our Version Of’ and “Not Associated With” legends. (Id.).

These similarities, which are present (albeit in slightly varying degrees) in each of Excell’s fragrances at issue, are more than sufficient to “illustrate a pattern of resemblance” between the parties’ products. Bath & Body Works Brand Mgmt., Inc. v. Summit Entm’t, LLC, 7 F.Supp.3d 385, 395 (S.D.N.Y. 2014). The Second Circuit’s analysis of two competing alcohol brands in Paddington, 996 F.2d at 586, is instructive. In that case, the Court acknowledged differences in the brand name, bottle shape, label design, and cap design between the two brands, but ultimately concluded that the bottles and packaging of the two brands—specifically, their coloration, labels, and typeface—were “sufficiently similar in overall impression to suggest that they are made by the same manufacturer.” Id. Here too, the fra-granees’ “lettering style, layout, and coloration, taken together, convey the same impression.” Id.-, see also, e.g., Clinique, 945 F.Supp. at 560 (“The similarities of the products carry through to similarities in the boxes in which they are packaged.”). Moreover, the similarities are no mere coincidence; by its own admission, Excell intentionally designed, manufactured, and marketed its fragrances for this effect. (See, e.g., Pis.’ Ex. 195 (Excell directing its manufacturer to develop a cap for its “version” of Vera Wang Lovestruck that was the same as the original product)).

To be sure, there is a range of differences between Coty’s marks and trade dresses, on the one hand, and Excell’s, on the other. (See Appendix A). At the less infringing end of what could be called the “similarity spectrum” are Excell’s CITY GIRL and Love story fragrances, which are the least similar to their counterparts, Coty’s DOWNTOWN and Lovestruck products. For example, although the names CITY GIRL and DOWNTOWN arguably evoke similar associations, the words do not sound in any way alike; the fragrances’ packages also have notable differences, as Excell’s version includes a disco behind the CITY GIRL logo and what appears to be a skyline at the bottom of its box. (Id.). Similarly, Coty’s Lovestruck contains a cap adorned with a purple floral bouquet while Excell’s Love story contains a much more understated purple cap without any obvious floral design. (Id.). At the other end of the “similarity spectrum,” Excell’s OK ROCK and SERENITY fragrances are remarkably similar to their counterparts, Coty’s CK SHOCK and ETERNITY, in both name and trade dress. (See Appendix A).

Notably, however, even the two fragrances at the less infringing end of the “similarity spectrum” contain significant similarities. For example, both Coty’s DOWNTOWN and Excell’s CITY GIRL are contained in squat, cylindrical bottles with rounded bottoms and ■ flat metallic silver cylindrical caps; both contain clear glass through which a pink hue fragrance is visible; both display the fragrance name in all uppercase letters on the center portion of the fragrance bottle; and-both are packaged in a bright pink outer carton. (See id,). Coty’s Lovestruck and Excell’s Love story have somewhat similar names and share a rectangular bottle with pink lettering; clear glass through which the purple hue of the fragrance is visible; a magenta outer carton; and the fragrance name displayed in sentence case on both the outer carton and fragrance bottle. (See id.). As with Excell’s other products, the packaging for CITY GIRL and Love story also includes exact replicas of Coty’s marks in their “disclaimers.” In short; here, as in Paddington, viewing all of the relevant marks and trade dresses “as a whole”—and in tandem—leads to the conclusion that the allegedly infringing products are quite similar to their counterparts. Id.-, see also, e.g., Brennan’s, Inc. v. Brennan’s Rest., L.L.C., 360 F.3d 125, 133 (2d Cir. 2004) (“[W]hen evaluating the similarity of marks, courts consider the overall impression created by a mark. Each mark must be compared against the other as a whole; juxtaposing fragments of each mark does not aid in deciding whether the compared marks are confusingly similar.”); Giorgio Beverly Hills, Inc. v. Revlon Consumer Prod. Corp., 869 F.Supp. 176, 182 (S.D.N.Y. 1994) (criticizing the plaintiff for “creating] a false, fragmentary image” by arguing that the court should consider the house mark and the product mark separately in its analysis and noting that “fragrance[s] [do not] bear[ ] a unitary mark”).

In rebuttal, Excell argues that the “Our Version Of’ 'and “Not Associated With” disclaimers on each of the allegedly infringing fragrances makes it “clear” that the company’s products are not associated with Coty. (Def.’s Mem. 12). Significantly, however, Coty’s marks are significantly more prominent and accentuated on Ex-cell’s fragrances than both the supposedly disclamatory language (“Our Version Of’ and “Not Associated With”) and Excell’s own marks. In similar circumstances, courts have held that disclaimers are not only ineffective, but actually cut against the allegedly infringing party. See Cartier, Inc. v. Deziner Wholesale, L.L.C., No. 98-CV-4947 (RLC), 2000 WL 347171, at *4 (S.D.N.Y. Apr. 3, 2000) (“Courts have held that when a company packages its product in a wrapper that more centrally displays a competitor’s name, or repeatedly mentions a competitor’s name, with the effect of making its competitor’s mark the most dominant feature on the package, such packaging is likely to confuse consumers about the product’s origin or affiliation.”); see Charles of the Ritz Group Ltd. v. Quality King Distrib., 636 F.Supp. 433, 437 (S.D.N.Y. 1986) (Weinfeld, J.) (“The disclaimer on the lower portion of the tab, which ... is hidden from view when the tab is in place, suggests a calculated effort by defendant to escape liability for infringement.”); Invicta Plastics Ltd. v. Mego Corp., 523 F.Supp. 619, 623 (S.D.N.Y. 1981) (analyzing the defendant’s package with repeated references to the plaintiffs product and concluding that defendant “was deliberately seeking to use the goodwill plaintiff has acquired in its success with [plaintiffs product] to sell its own product”). Based in part on evidence presented at trial—namely, Coty’s expert’s surveys, discussed in detail below—the Court reaches the same conclusion here. Accordingly, the second Polaroid factor cuts heavily in Coty’s favor.

c. Competitive Proximity of the Products and Bridging the Gap

The third and fourth Polaroid factors— the proximity of the products and likelihood that the plaintiff will “bridge the gap”—weigh in Excell’s favor, but not as heavily as it seems to believe. (Def.’s Mem. 7). To be sure, Coty’s products are generally sold at higher-end retailers while Ex-cell’s are (or were) sold at discount stores, and the companies’ products are generally offered at different price points. (Id. 7-8). Nevertheless, these differences have “little or no bearing on post-sale confusion as to the source of the goods.” Clinique, 945 F.Supp. at 554 ; see also Gucci, 868 F.Supp.2d at 248 (S.D.N.Y. 2012) (“[I]n the post-sale context, the target selling market is of decreased importance, as the confusion that exists in the general viewing public is what matters.”). Indeed, the fact that Excell and Coty’s products may be sold in different venues has no effect on the possibility that “a potential purchaser, knowing that the public is likely to be confused or deceived by the allegedly infringing product, will choose to purchase that product instead of a genuine one in order to gain the same prestige at a lower price.” Gucci Am., Inc. v. Guess?, Inc., 843 F.Supp.2d 412, 418 (S.D.N.Y. 2012).

Additionally, although Excell is correct that Coty’s fragrances are generally sold in more “upscale” establishments, Coty has presented evidence that the fragrance market is somewhat fluid and that there are retailers and fora—both brick-and-mortar and online—that have marketed both parties’ fragrances, including K-mart, CVS, Amazon, and eBay. (Conklin Direct ¶¶ 19, 25-26; Tuil-Torres Direct ¶¶ 31, 48 (noting that some of Coty’s fragrances are sold at CVS and Kmart); Tr. 478 (testimony of Ferullo acknowledging Excell’s products were sold at Kmart); Pis;’ Ex. 174 (listing CVS as a direct customer of Ex-cell)). On top of that, Coty found that some of its fragrances were diverted and sold at CVS and Dollar General, both of which sell Excell products. (Conklin Direct ¶23, 28; Tr. 260 (testimony of Keegan noting that diverted goods, can be found “anytime a manufacturer/distributor has an intended channel for a product and that product somehow ends up in a different channel.”)). In the case of Dollar General, that is hardly surprising as discount stores often carry marked-down branded fragrances. (See Pis.’ Ex. 232; Tr. 276 (testimony of Kee-gan noting that Dollar General carries branded fragrances)).

Meanwhile, Excell’s reliance on the price differences between the parties’ fragrances is misguided for various reasons. As an initial matter, Coty and Excell are not retailers, and thus do not control the ultimate prices of their products. (Rotter Direct ¶ 19; Ferullo Dep. 24). Additionally, any price difference between products, like the differences between marketplaces, has little or no bearing on the potential for post-sale confusion. Again, if anything, Ex-cell’s lower prices may increase the likelihood of consumers purchasing “the allegedly infringing product, on the grounds that they can obtain the same prestige for less money.” Gucci Am., Inc. v. Guess?, Inc., 831 F.Supp.2d 723, 747 (S.D.N.Y. 2011). Excell’s price-point contention is also largely immaterial to the “probability that potential purchasers would be misled into an initial interest in” its products due to their similarity to Coty’s products. Mobil, 818 F.2d at 260. Indeed, most purchasers of fragrances in a retail setting are likely to view the packaging before checking the price label, which adds support to Coty’s claim of initial-interest confusion. Finally, the price differences between the parties’ products is not nearly as significant as Excell asserts. In 2016, for exam- ■ pie, Coty recommended that retailers sell some of its flagship products for prices ranging from $12.50 to $72. (See Rotter Direct ¶ 18; Tuil-Torres Direct ¶¶ 10-12). Needless to say, the fact that the company marketed lower-priced fragrances blunts the force of Excell’s pricing arguments. Cf. Charles of the Ritz, 832 F.2d at 1322 (noting that “some question remains whether two distinct fragrance markets actually exist” and concluding that any “barrier between the two is sufficiently porous to allow [the senior user] passage with little difficulty”); Toni & Guy (USA) Ltd. v. Nature’s Therapy, Inc., No. 03-CV-2420 (RMB), 2006 WL 1153354, at *9 (S.D.N.Y. May 1, 2006) (“Plaintiff has presented no evidence that it is likely to bridge the gap ... by selling lower-priced products that would compete more directly with Defendant’s products ...” (emphasis supplied) (internal quotation marks omitted)). In sum, although Excell demonstrated that a separation exists between the market and price points for its products and Coty’s products, the separation is not quite as stark as Excell would have it. Thus, the third and fourth Polaroid factors—which look to the competitive proximity of the products and “whether the two companies are likely to compete directly in the same market,” Charles of the Ritz, 832 F.2d at 1322—favor Excell, but only slightly.

d. Actual Confusion

The fifth factor, whether there is evidence of actual consumer confusion, weighs in Coty’s favor. For one thing, because “evidence of intentional copying gives rise to a presumption of actual confusion,” the burden is on Excell to demonstrate a lack of confusion, which it failed to do. Gucci, 868 F.Supp.2d at 240; see Mobil, 818 F.2d at 258 (“Intentional copying gives rise to a presumption of a likelihood of confusion.”). For another, the record— namely, survey evidence submitted by both sides—supports a finding of actual confusion.

To evaluate the validity and reliability of a survey, a court should consider whether:

(1) the proper universe was examined and the representative sample was drawn from that universe; (2) the survey’s methodology and execution were in accordance with generally accepted standards of objective procedure and statistics in the field of such surveys; (3) the questions were leading or suggestive; (4) the data gathered were accurately reported; and (5) persons conducting the survey were recognized experts.

Gucci Am., Inc. v. Guess?, Inc., 831 F.Supp.2d at 738. In general, surveys “demonstrating confusion levels over 50% are almost always viewed by courts as persuasive evidence of likely confusion”; in cases “[wjhere other evidence is supportive, courts have found a likelihood of confusion when survey results are between 10% and 20%.” 6 McCarthy on Trademarks and Unfair Competition § 32:188 (4th ed.) (citing cases); see RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1061 (2d Cir, 1979) (affirming the district court’s reliance on the results of a “consumer study showing a fifteen to twenty percent rate of product confusion”); Procter & Gamble Co. v. Ultreo, Inc., 574 F.Supp.2d 339, 345 (S.D.N.Y. 2008) (“Cases have' held that 20% constitutes a substantial pércentage of consumers”).

Significantly, Excell’s own survey evidence supports a finding of likely customer confusion in this case. According to Mark Kéegan, Excell’s expert, 19.5% of respondents in an Internet survey identified Calvin Klein as the source of Excell’s POSSESSION fragrance, and 15.1% identified Calvin Klein as the source of Excell’s SERENITY fragrance. (Keegan Direct ¶ 56). On their face, those results are reasonably favorable to Coty. But there are several reasons to believe that the actual likelihood of confusion is even higher. First, the universe of participants in Kee-gan’s survey was limited to people who had recently shopped at a- discount store, flea market, rummage-sale, or bazaar. (See Tr. 273-74). But Excell’s products are marketed in a broader array of venues, including malls, department stores, pharmacies, and on the Internet. Perhaps not coincidentally, the venues excluded from Keegan’s survey are the types of venues where potential purchasers of Coty’s products, are most likely to be found.- Second, by his own admission, Keegan’s survey was unsuitable for measurement of initial-interest and post-sale confusion. (Tr. 339 (testimony of Keegan noting that his survey does not address initial-interest confusion and has “very little” relevance to post-sale confusion)). Third, the survey was flawed because it prompted respondents to focus on Excell’s products in an unrealistic manner and setting. Most notably, Excell’s boxes were displayed in a manner that allowed respondents to see all faces of the packaging at once. (Id. Ex. 3; Def.’s Ex. ZZ). Finally, Keegan made several coding errors—namely, by treating as “not confused” a number of respondents who were plainly confused as to whether Excell’s fragrances were produced by Calvin Klein. (Pis.’ Ex. 266 (“Rappeport Direct”) ¶ 44 (identifying such responses including, “What a bargain for a Calvin Klein product”; “It’s made by Calvin Klein, I like it”; and. “Just the fact that it was made by Calvin Klein is worth the $4.99”)). After correcting for those errors and filtering out “noise,” see, e.g., 6 McCarthy on Trademarks and Unfair ' Competition § 32:187 (4th ed.) (explaining the concept of “noise”), Dr. Michael Rappeport, Coty’s expert, concluded that 25% of the -respondents in Keegan’s survey actually identified Calvin Klein as the source of Excell’s POSSESSION fragrance and , that 20% identified Calvin Klein as the source of Excell’s SERENITY fragrance. (Rappe-port Direct ¶ 47). In short, Keegan’s survey provides even stronger evidence of confusion than might appear even at first glance. See Playtex Prods., LLC v. Munchkin, Inc., No. 14-CV-1308 (RJS), 2016 WL 1276450, at *4 (S.D.N.Y. Mar. 29, 2016).

In any event, the Court concludes that the study conducted by Coty’s expert, Dr. Rappeport, is more reliable than the study conducted by Keegan and firmly supports a finding of likely customer confusion. Dr. Rappeport used the widely accepted Ever-eady survey format, see, e.g., Akiro LLC v. House of Cheatham, Inc., 946 F.Supp.2d 324, 339 (S.D.N.Y. 2013) (describing the Eveready survey format and noting that it “is generally accepted and represents the ‘gold standard’ for cases involving strong marks”),-to conduct a consumer comparison survey comparing Calvin Klein’s OBSESSION and ETERNITY packages to Excell’s POSESSION and SERENITY packages in malls across the country. (Rappeport Direct ¶¶ 11, 14, 20). Specifically, he examined a random selection of “people 18 years old and older who ha[d] purchased a fi'agrance product for themselves, or for someone else, in the past six months” and showed them versions of the Excell packages to determine if they were confused as to the source. (Pis.’ Ex. 161-1, at 3-4). Notably, participants’ responses were “unaided,” in that neither the participants nor the interviewers were exposed as part of the survey to the genuine Calvin Klein OBSESSION or ETERNITY fragrances-—or even to the name Calvin Klein. (See Rappeport Direct ¶ 9). After filtering out the “noise,” Dr. Rappeport concluded that an average of 54% of the respondents misidentified the source of Excell’s products as Calvin Klein. (Id. ¶¶ 9, 30-33).

Excell advances several arguments to undermine the reliability of Dr, Rappeport’s survey. First, it contends that Dr. Rappeport erred by not excluding higher-end consumers to ensure that respondents were actual or potential purchasers of Excell’s products. (Def.’s Mem. 9-10). That argument has some force. Where, as here! a junior user is alleged to be selling its products as if they came from the senior user, “the relevant market consists of the consumers of the junior user’s products.” Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 741 (2d Cir. 1994). As discussed above, however, Coty’s and Ex-cell’s markets are not quite as discrete as Excell suggests. Moreover, it is not uncommon for higher-end fragrance companies, including Coty, to create less expensive versions of their products—sometimes called “flankers”—for sale at lower price points or in lower-end retail markets. (See, e.g,, Singer Direct ¶¶ 30-32) (discussing Coty’s use of “flankers” and “limited editions” to supplement its existing brands)). Cf. Lois Sportswear, 799 F.2d at 874 (“Certainly a consumer observing [plaintiffs] striking stitching pattern on [defendants’] designer jeans might assume that [plaintiff] had chosen to enter that market segment using a subsidiary corporation, or that [plaintiff] had allowed [defendants’] designers, to use [plaintiffs] trademark as a means of reaping some’profits, from the designer jeans fad without a full commitment to that market segment.”)- Accordingly, although Dr. Rappeport’s failure to exclude higher-end consumers does affect the weight to be given to his survey results, it does not altogether strip them of probative value. See, e.g., Paco Sport, Ltd. v. Paco Rabanne Parfums, 86 F.Supp.2d 305, 322 (S.D.N.Y. 2000) (“The courts have held that to be probative on the issue of actual confusion, a survey must rely on responses of prospective purchasers of the products in question.”).

Next, Excell faults Dr. Rappeport for failing to provide respondents with relevant sales channel and price information about the products they were asked to examine. (Def.’s Mem. 11). Once again, however, there is some overlap in the relevant sales channels. Additionally, sales channel and price information, while relevant to the proximity analysis above, is less relevant to the basic question courts ask under this prong of the Polaroid test: whether the defendant’s product confuses consumers as to its source. See Gucci, 868 F.Supp.2d at 240. (Notably, when asked at trial, Keegan was unable to cite a single survey, accepted by a court, that included information regarding pricing and sourcing. (Tr. 267).) And it is altogether irrelevant to Coty’s claim that Excell’s products cause initi