Calista Enterprises Ltd. v. Tenza Trading Ltd. (43 F. Supp. 3d 1099, 2014)

United States District Court for the District of Oregon 2014-08-08

Commerce and Trade

Citations

Full opinion text

OPINION AND ORDER

MICHAEL H. SIMON, District Judge.

This is a trademark dispute between two providers of Internet pornography. Plaintiff Calista Enterprises Ltd. (“Calista”) and Defendant Tenza Trading Ltd. (“Ten-za”) are businesses that operate websites in the adult-entertainment industry and stream sexually explicit videos. The parties’ claims and counterclaims concern U.S. trademark law under the Lanham Act, 15 U.S.C. §§ 1114-1125, as well as related claims under Oregon law. Calista moves for partial summary judgment on its claim for cancellation of Tenza’s registered trademark, Calista’s claim for declaration of noninfringement, Tenza’s claim for counterfeiting, and for a finding that Ten-za’s claims are barred by laches. Tenza moves for partial summary judgment on its claims for trademark infringement, counterfeiting, cybersquatting, and for a finding that Calista may not recover money damages. For the reasons below, the Court denies Calista’s motion for partial summary judgment and grants in part and denies in part Tenza’s motion for partial summary judgment.

STANDARDS

A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir.2001). Although “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of the plaintiffs position [is] insufficient....” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and quotation marks omitted).

Where parties file cross-motions for summary judgment, the court “evaluated] each motion separately, giving the non-moving party in each instance the benefit of all reasonable inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir.2006); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 674 (9th Cir.2010) (“Cross-motions for summary judgment are evaluated separately under [the] same standard.”). In evaluating the motions, “the court must consider each party’s evidence, regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632 F.3d 526, 532 (9th Cir.2011). “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir.2010). Thereafter, the non-moving party bears the burden of designating “specific facts demonstrating the existence of genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as to the material facts at issue. Matsushita, 475 U.S. at 586, 106 S.Ct. 1348.

BACKGROUND

A. Tenza

Tenza is the owner of an adult-entertainment website at www.porntube.com. The www.porntube.com website was originally owned by EMC Ideas, Inc. In late 2010, EMC sold the domain name to FUX Ltd., of which Steve Matthyssen is a shareholder. FUX contributed the domain name bought from EMC to the newly formed Tenza, of which FUX is a shareholder. Tenza’s domain porntube.com is operated by non-party DreamStar Cash Ltd. (“DreamStar”). DreamStar is managed by Steven Matthyssen who, along with Michael Cardone, is a beneficial co-owner of Tenza.

In May of 2005, the www.porntube.com website began streaming pornographic videos. Content on -Tenza’s website is uploaded by content producers. Tenza’s business model is to route traffic to its website and generate revenue through two methods: (1) third-party advertising displayed on the website; and (2) payments from the content producers when visitors click on a hyperlink to the content producer’s website and make a purchase from that content producer. In order to promote visitors to its website, Tenza markets itself by using “search. engine placement services” to maximize the times when Ten-za’s website appears among the top results on a search engine in response to user searches. Tenza also sponsors events, such as race cars in major races, to promote its website. Tenza’s primary marketing tool, however, is its affiliate program, whereby operators of other adult-entertainment websites (“Affiliates”) include links on their websites so that visitors to those websites may “click through” to reach Tenza’s website. Tenza then tracks each “click through” and compensates Affiliates on a per-click-through basis. Tenza’s website has a Global Alexa ranking, which estimates the popularity of a website based on the number of visitors and the number of page views on a site, of 1,110 globally and a ranking of 1,182 in the United States.

Tenza also has a trademark registration for the word mark “PORNTUBE,” registration number 3,936,197 (“the '197 Registration”). Tenza’s predecessor in interest, . EMC, filed an application for the '197 Registration on October 29, 2008. Tenza bought the rights to the pending application in late 2010 for $30,000. The application recited a date of first use of the “PORNTUBE” word mark of May 2005. • After publication in the Official Gazette of the U.S. Patent & Trademark Office (“PTO”), WMM Holdings, LLC (“WMM”) filed an objection to the application for the '197 Registration. The objection was dismissed after Tenza entered into a consent and coexistence agreement with WMM. The PTO issued the '197 Registration on March 29, 2011 without further objection.

B. Calista

Calista owns and operates several websites that that “categorize” and link to third-party websites that stream pornographic videos. Calista’s sole owner and employee is Alexander Zhukov, a named counterclaim defendant in this action. Several other corporations work with Cal-ista on its websites, including Oklax Inc. (which manages the domain name register accounts for the domain names in dispute in this litigation), Wiblax Ltd. (which serves as a payment agent for Calista), and AlexZ-Traffic s.r.o. (which develops software and templates used on Calista’s websites).

Calista’s relationship with DreamStar began in September of 2009. DreamStar and Mr. Matthyssen invited Calista to participate in the “webmaster affiliate program” for an adult-entertainment video website called 4tube.com. As an affiliate of the 4tube.com webmaster program, DreamStar paid Calista a commission to send traffic to 4tube.com. In February of 2010, Mr. Matthyssen also asked Calista to join the webmaster affiliate program for a new website called fux.com. On January 3, 2011, Mr. Matthyssen asked Calista to join the webmaster affiliate program for www. porntube.com (“Tenza Webmaster Program”). Calista participated in the Tenza Webmaster Program from January 3, 2011 through March 28, 2013. Calista was one of the most productive affiliates in the Tenza Webmaster Program.

Calista registered a number of domains containing the words “porn,” “tube,” or “porn” and “tube” in various combinations. Some of these domain names were used as a part of Calista’s participation in the 4tube.com webmaster affiliate- program, the fux.com webmaster affiliate program, and the Tenza Webmaster Program.

Calista registered its first domain name that included the word “porntube,” www. freshporntube.com, in June of 2009. Between that time and before January 2011, Calista owned and operated. 15 websites with domain names containing both “porn” and “tube” in various combinations. Between January of 2011 and August of 2013, Calista developed and operated at least an additional 17 domain names containing some permutation of the '197 Registration. In total, Calista has at least 14 domain names that include the '197 Registration verbatim, including: freshporntube.com, goldporntube.com, lustporntube.com, bo-nusporntube.com, boxporntube.com, directporntube.com, largeporntube.com, pi-peporntube.com, bookporntube.com, 69porntube.com, kissporntube.com, royal porntube.com, cubeporntube.com, and goldporntube.xxx. Shayefar Deck Ex. 15 at 4, Dkt. 98-7 at 27.

C. Dispute Between the Parties

On March 25, 2013, Tenza initiated a proceeding under the Uniform Domain Name Dispute Resolution Policy (“UDRP”) of the Internet Corporation for Assigned Names and Numbers (“ICANN”). In that UDRP action, Tenza sought the transfer to Tenza of 13 domain names, which Calista contends it owns, based on their substantial similarity to and alleged infringement of to the '197 Registration. A UDRP arbitration panel ruled in favor of Tenza, and Calista then filed this lawsuit. The filing of this lawsuit prevented the immediate transfer to Tenza of the disputed domain names pursuant to the UDRP panel’s decision.

DISCUSSION

A. Evidentiary Disputes

Tenza relies on a survey completed by Donald J. Morgan in support of Tenza’s motion for summary judgment. Tenza argues that this survey evidence demonstrates that it has a valid trademark and that there is a likelihood of consumer confusion related to its counterclaim for trademark infringement. Calista argues that consumer surveys are irrelevant in this matter because of the nature of the '197 Registration. Calista also argues that Mr. Morgan’s survey results are “irretrievably flawed as to render” them irrelevant and inadmissible under Federal Rules of Evidence 401 or 402. Calista also argues that Mr. Morgan’s survey methodologies are inadmissible under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In order for the Morgan survey to be admissible, Tenza must show that the survey is both relevant and reliable. Keith v. Volpe, 858 F.2d 467, 480 (9th Cir.1988).

1. Relevance

Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. Fed.R.Evid. 401. Calista argues that consumer surveys are only relevant where the trademark at issue is a newly-coined or “fanciful term,” or in the context of a descriptive term, to determine if the word has acquired “secondary meaning.” See Schwan’s IP, LLC v. Kraft Pizza Co., 460 F.3d 971, 975-76 (8th Cir. 2006). The Court, however, looks not only to the component parts of a composite trademark, i.e., by focusing on the words “porn” and “tube” in isolation but, instead, looks at the trademark as a whole. See Official Airline Guides, Inc. v. Goss, 6 F.3d 1385, 1392 (9th Cir.1993); Abercrombie & Fitch Co. v. Moose Creek, Inc., 486 F.3d 629, 636 (9th Cir.2007). This is the correct approach because “Combinations of old words to create new phrases can be just as specific product descriptive/nongeneric as new coined words.” Berner Int’l Corp. v. Mars Sales Co., 987 F.2d 975, 982 (3d Cir.1993); see also McCarthy on Trademarks and Unfair Competition § 12:17.50 (4th ed.2014) (explaining that “[t]o state that consumer perception is irrelevant for a non-coined ‘generic’ word (like SHELL, or IVORY or HARP) is to assume the result before making an analysis of that which is to be decided”). Because the combination of the words “porn” and “tube” could have nongeneric meaning to the consuming public, the Court finds that the Morgan survey is relevant because it relates to factual issues of consumer perception. See McCarthy on Trademarks and Unfair Competition § 32:158.

2. Reliability

Survey evidence is only admissible if it was obtained “in accordance with generally accepted survey principles” and “the results were used in a statistically correct manner.” Keith, 858 F.2d at 480. Asserted technical inadequacies with a survey, “including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility.” Id. If, however, there are substantial design defects in the survey or its execution is defective, then the survey could be excluded. See Harolds Stores, Inc. v. Dillard Dep’t Stores, 82 F.3d 1533, 1544 (10th Cir.1996); Pittsburgh Press Club v. United States, 579 F.2d 751, 759-60 (3d Cir.1978); accord Keith, 858 F.2d at 480. The Ninth Circuit does not have a standard test to determine when a survey is conducted reliably, but the Handbook of Recommended Procedures for the Trial of Protracted Cases provides a list of important factors, including:

(1) The proper universe was Selected and examined;

(2) A representative sample was drawn from that universe;

(3) The mode of questioning the interviewees was correct;

(4) The persons conducting the survey were recognized experts;

(5) The data gathered were accurately reported;

(6) The sample design, the questionnaire and the interviewing were in accordance with generally accepted standards of objective procedure and statistics in the field of such surveys;

(7) The sample design and the interviews were conducted independently of the attorneys; and,

(8) The interviewers trained in this field had no knowledge of the litigation or the purposes for which the survey was used.

Judicial Conference of the United States, Handbook of Recommended Procedures for the Tñal of Protracted Cases, 25 F.R.D. 365, 429 (1960) {“Handbook”). The. more modern Reference Manual on Scientific Evidence (“Reference Manual ”) enumerates similar considerations. See Federal Judicial Center, Reference Manual, Reference Guide on Survey Research 373-76 (3rd ed.2011).

Calista argues that the Morgan survey is unreliable for three reasons: (1) Mr. Morgan is unfamiliar with the subject matter involved in this case and improperly defined a crucial term; (2) Mr. Morgan made several methodological errors; and (3) the order of the questions in the Morgan survey were leading and rendered portions of the survey meaningless,

a. Morgan’s Familiarity

Calista argues that the Morgan survey is unreliable because it was Mr. Morgan’s first consumer survey related to the adult-entertainment industry. Because Mr. Morgan had no exposure to the adult-entertainment industry before this litigation, he visited www.porntube.com and a few other adult-entertainment websites: Calista contends that this lack of familiarity led Mr. Morgan improperly to define an “adult streaming video” as a “video that can be viewed in real time.” Mr. Morgan explained in his deposition testimony that when he used the phrase “real time” he meant that “what you see on those sites includes video that appears to be live streaming video where someone wants to talk to you.” Shayefar Decl. Ex. 59, Morgan Depo. at 123:21-25, Dkt. 114-12 at 47. Mr. Morgan continued: “And so I was trying to define that category of websites that allows the consumer to see this streaming video that they can—I mean, it’s real, it’s live, in realtime.” Id. at 124:1-6. When Calista brought to Mr. Morgan’s attention that the definition of “adult streaming video” in this case does not include videos that can be viewed in real time, Mr. Morgan explained “I think that I’ve defined things accurately, and I think the results are very scientific.” Id. at 134:13-17. Calista argues that because neither the disputed domains nor Tenza’s website actually display live video or provide an opportunity to interact with performers, Mr. Morgan’s definition of “adult streaming video” was erroneous.

Tenza asserts that Mr. Morgan is sufficiently qualified to execute the consumer survey. Tenza, however, did not respond to the issue of Mr. Morgan defining an “adult streaming video” as something that occurs in “real time.” This flaw may be sufficient to justify the exclusion of the Morgan survey under Rule 702, however, the Court need not resolve this issue at this time, because even if the Morgan survey were excluded, summary judgment would still be inappropriate.

b. Morgan’s Methodology

Calista also challenges the design of the Morgan survey on the basis that Mr. Morgan improperly defined the “ ‘universe’ to be studied”—that is, “that segment of the population whose perceptions and state of mind are relevant to the issues in the case.” McCarthy on Trademarks and Unfair Competition § 32:159. In a case claiming “forward” confusion, “the proper universe to survey is the potential buyers of the junior user’s goods or services.” Id. (emphasis in original); see also AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 353 (9th Cir.1979) (“In assessing the likelihood of confusion to the public, the standard used by the courts is the typical buyer exercising ordinary caution.”), abrogated in part on other grounds by Mattel Inc. v. Walking Mountain Prods., 353 F.3d 792 (9th Cir.2003); see also Suzanne Bonamici, The Use and Reliability of Survey Evidence in Deceptive Advertising Cases, 62 Or. L.Rev. 561, 596 (1983) (“If the wrong universe has been selected, the survey will provide information about a wholly irrelevant universe.”).

Calista states that the Morgan survey used three qualifications to define the relevant “universe” of participants: a person needed to be 18 years or older, not be employed in the legal profession, and visit an adult-entertainment website four or more times per month. Morgan Depo. at 56:13-61:17. Calista argues that individuals who participate in the adult-entertainment industry should have been excluded. Calista further argues that Mr. Morgan erroneously failed to exclude the 176 respondents who stated they had not visited “adult entertainment streaming websites” in the past three months even after answering the relevant screening question. Id. at 137:16-138:11.

Regarding the proper “universe,” Tenza argues that the relevant audience is individuals who visit adult-entertainment websites four or more times per month. Mr. Morgan explained in his deposition testimony that in his judgment, these individuals “were part of the total, the totality of the consumer base, and that their opinions with regards to that would be important.” Id. at 57:24-58:7. Although Tenza did not respond to whether individuals in the adult-entertainment industry should have been excluded, the Court concludes that this challenge goes “to the weight of the survey rather than its admissibility.” See Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1038 (9th Cir.2010) (quoting Clicks Billiards, 251 F.3d at 1263); see also City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1044 (9th Cir.2014) (“Shaky but admissible evidence is to be attacked by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” (quoting Daubert, 509 U.S. at 596, 113 S.Ct. 2786)). Calista’s argument that 176 respondents were erroneously included in the survey results because those individuals had not visited an adult-entertainment website in the last three months is an insufficient basis to exclude the Morgan survey. As Mr. Morgan explains, the fact that someone has not visited such a website in the past three months does not necessarily mean that individual does not generally visit such websites on a regular basis. Morgan Depo. at 139:1-5. Calista’s objection goes to the weight that the fact-finder should give the evidence, not to its admissibility. See Pomona, 750 F.3d at 1044.

The Court concludes that these potential weaknesses in the defined universe are not sufficient to exclude the survey. Wendt v. Host Int’l, Inc., 125 F.3d 806, 814 (9th Cir.1997) (“Challenges to survey methodology go to the weight given the survey, not its admissibility”).

c. Order of Survey Questions

Calista’s final challenge to the reliability of the Morgan survey is that immediately after asking, “Would you say PORNTUBE is a brand name or a common name,” the survey asked “Which of the following are names of adult entertainment streaming video websites of which you have heard?” Shayefar Decl. Ex. 56, Dkt. 114-10 at 73-75. Calista argues that this juxtaposition of questions is guaranteed to inflate the number of respondents who claim to have heard of “PORNTUBE.” See McCarthy on Trademarks and Unfair Competition § 32:172 (“A question ‘What brand do you think of when you hear this slogan?’ was held slanted where previous questions had already mentioned the critical brand name.”) (citing Ralston Purina Co. v. Quaker Oats Co., 169 U.S.P.Q. 508, 1971 WL 16472 (T.T.A.B.1971)). Tenza argues that the order of the survey questions was a logical prompt to survey participants and did not bias the outcome of the survey results.

“[T]he wording of a question, open-ended or close-ended, can be leading or non-leading, and the degree of suggestiveness of each question must be considered in evaluating the objectivity of a survey.” Reference Manual at 393. Further, “[t]he order in which questions are asked on a survey and the order in which response alternatives are provided in a close-ended question can influence the answers.” Id. at 395. The two general questions addressed by Calista are close-ended. The first general question (listed as individual questions 15 through 22) explains: “We would like to ask you a few questions regarding your understanding of some names or terms for various products or services.” Shayefar Decl. Ex. 56, Dkt. 114-10 at 73. “Porntube” is the fifth name or term listed. The next question lists ten adult-entertainment streaming websites, including listing “porntube” last. Calista’s criticisms may or may not carry weight, but the Morgan survey is not an example where the survey questionnaire “suggested its own answer.” Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 118 (2d Cir.1984) (rejecting leading questions that presented survey participants with a connection rather than allowing them to make their own connection). The Court notes that the first question, about recognizing certain words as brand names or common names, is not directly related to the next question, which asks survey participants if they are aware of certain adult-entertainment streaming video websites. As a result, the Court concludes that the survey evidence is sufficiently reliable to be admitted into evidence. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1143 (9th Cir.1997) (holding that objections based on the universe of survey participants and the use of leading questions went only to the weight, and not the admissibility, of the survey).

The Court finds that the Morgan survey, at least at this stage of the proceedings, is admissible.

B. Trademark Validity

Calista and Tenza each move and cross-move for summary judgment on the issue of whether Tenza owns a valid trademark. For a party successfully to assert a trademark infringement claim under § 1114 of the Lanham Act, it must first show that it has a valid mark and next that the alleged violating use of the mark is “likely to cause confusion, or to cause mistake, or to deceive” the consumer. 15 U.S.C. § 1114(l)(a). Validity of the trademark is a threshold question because “[a] necessary concomitant to proving infringement is, of course, having a valid trademark; there can be no infringement of an invalid mark.” Tie Tech, Inc. v. Kinedyne Corp., 296 F.3d 778, 783 (9th Cir.2002). Calista argues that the '197 Registration is invalid because it is a generic term. Tenza responds that the '197 Registration is suggestive or at least descriptive with acquired distinctiveness.

1. Legal Standards

“ ‘Federal registration of a trademark endows it with a strong presumption of validity,’ ” including “ ‘the specific presumption that the trademark is not generic.’ ” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 604 (9th Cir.2005) (quoting Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1254 (9th Cir.1982)). In order to overcome this presumption at the summary judgment stage, all inferences from the facts are drawn most favorably to the nonmoving party and the challenger must show “by a preponderance of the evidence that the term was or has become generic.’ ” Yellow Cab Co. v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925, 928 (9th Cir.2005) (quoting Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 684 F.2d 1316, 1319 (9th Cir. 1982)). “The crucial date for the determination of genericness is the date on which the alleged infringer entered the market with the disputed mark or term.” Id. Because trademark validity is “an intensely factual issue,” “summary judgment is generally disfavored in the trademark arena.” KP Permanent Make-Up, 408 F.3d at 602, 605 (citation and quotation marks omitted).

Section 45 of the Lanham Act, 15 U.S.C. § 1127, defines a trademark as including “any word, name, symbol, or device, or any combination thereof’ used by any person “to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” The existence and extent of trademark protection for a particular term depends on that term’s inherent distinctiveness. 15 U.S.C. § 1052. “Distinctiveness measures ‘the primary significance of the mark to the purchasing public.’ ” Zobmondo Entm’t, LLC v. Falls Media, LLC, 602 F.3d 1108, 1113 (9th Cir.2010) (citation omitted). Courts have identified five categories of terms: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992). A court determining distinctiveness is “‘required to consider standards of meaning not our own, but prevalent among prospective purchasers of the article.’” Zobmondo, 602 F.3d at 1113 (quoting Bada Co. v. Montgomery Ward & Co., 426 F.2d 8, 11 (9th Cir.1970)).

Which category a mark belongs in is a “fact-intensive question.” Lahoti v. VeriCheck, Inc., 586 F.3d 1190, 1204 (9th Cir.2009); Zobmondo, 602 F.3d at 1113. Suggestive, arbitrary, and fanciful marks are deemed “inherently distinctive” and automatically entitled to federal trademark protection because “their intrinsic nature serves to identify a particular source of a product.” Two Pesos, 505 U.S. at 768, 112 S.Ct. 2753. In contrast, “generic” marks are the weakest category of a mark and receive no trademark protection. Id. A “descriptive” mark may be entitled to protection only if it has acquired distinctiveness through secondary meaning. Id. at 769, 112 S.Ct. 2753.

Generic terms refer to “ ‘the genus of which the particular product or service is a species,’ ie., the name of the product or service itself.” Advertise.com, Inc. v. AOL Advertising, Inc., 616 F.3d 974, 977 (9th Cir.2010) (quoting Filipino Yellow Pages, Inc. v. Asian Journal Publ’ns, Inc., 198 F.3d 1143, 1146 (9th Cir.1999)). In other words, generic terms are “common descriptive” names for what a product is. Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 718 F.2d 327, 329 (9th Cir.1983), rev’d on other grounds, 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985). “Whether a mark is generic is a question of fact.” Yellow Cab Co., 419 F.3d at 929 (citation and quotation marks omitted).

A suggestive.mark, on the other hand, “is one for which ‘a consumer must use imagination or any type of multistage reasoning to understand the mark’s significance ... the mark does not describe the product’s features, but suggests them.” Zobmondo, 602 F.3d at 1114 (emphasis and alteration in original) (quoting Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery, 150 F.3d 1042, 1047 n. 8 (9th Cir.1998)). In contrast to a suggestive mark, descriptive terms “describe a particular quality, function, or characteristic of a product or service.” Blinded Veterans Ass’n v. Blinded Am. Veterans Found., 872 F.2d 1035, 1039-40 (D.C.Cir. 1989). Descriptive marks simply “define qualities or characteristics of a product in a straightforward way that requires no exercise of the imagination to be understood.” Zobmondo, 602 F.3d at 1114 (quoting Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1141-42 (9th Cir. 2002)). The distinction between a suggestive or descriptive mark depends upon what the goods and services at issue are. Entrepreneur Media, 279 F.3d at 1142. As a result, courts evaluate a mark “by reference to the goods or services that it identifies and as it appears in the marketplace.” Id. (citation and quotation marks omitted).

To distinguish between descriptive marks and generic marks, the Ninth Circuit uses its “who-are-you/what-are-you” test, which provides: “ ‘A mark answers the buyer’s questions ‘Who are you?’ “Where do you come from?’ ‘Who vouches for you?’ But the [generic] name of the product answers the question ‘What are you?”” Advertise.com, 616 F.3d at 978 (alteration in original) (quoting Filipino Yellow Pages, 198 F.3d at 1147). Evidence that a challenger may use to prove genericness can include the following: (1) generic use by competitors of the mark that has not been contested by the owner of the mark; (2) generic use of the trademark by the proponent of the trademark; (3) dictionary definitions to determine public usage; (4) generic usage in the media of the trademark, such as in trade journals and newspapers; (5) testimony of persons in the trade; and (6) consumer surveys. McCarthy on Trademarks and Unfair Competition § 12:13; Filipino Yellow Pages, 198 F.3d at 1150-51.

2. Component Parts of the '197 Registration

In cases where the putative mark is a combination of two words, also known as a composite mark, a court may begin its “inquiry by separately viewing the component parts of the mark.” Advertise.com, 616 F.3d at 977. Even after looking at the constituent parts of the composite mark, however, the “validity and distinctiveness of a composite trademark is determined by viewing the trademark as a whole, as it appears in the marketplace.” Official Airline Guides, 6 F.3d at 1392; see also Abercrombie & Fitch, 486 F.3d at 636 (analyzing a mark as it appears in the market place). The '197 Registration consists of two component parts: “porn” and “tube.” Calista contends that because ■these two constituent parts are generic, the composite mark “PORNTUBE” must also be generic. See Advertise.com, 616 F.3d at 977; In Re Audio Book Club, Inc., 52 U.S.P.Q.2d 1042, 1999 WL 813965, at *2-3 (T.T.A.B. May 11, 1999) (analyzing whether the “AUDIO BOOK CLUB” is a generic designation, finding the constituent parts to be generic and the combination of the words to function in a generic manner).

Calista also asserted at oral argument that the Ninth Circuit’s decision in Surgi-centers of America, Inc. v. Medical Dental Surgeries, Co., 601 F.2d 1011 (9th Cir. 1979), is dispositive on how this Court should analyze the '197 Registration. Cal-ista argues that Surgicenters stands for the proposition that the combination of two generic terms renders a composite mark that is also generic. Calista further contends that because Surgicenters is closely analogous to this case, the Court should find that the '197 Registration is generic. There are both factual and legal issues with Calista’s application of Surgicenters.

Factually, there is a dispute between the parties regarding how to interpret the component parts of the composite mark “PORÑTUBE.” Calista argues that the term “porn” is generic and cites to the expert report of Scott Rabinowitz who was retained in this matter by Tenza. Mr. Rabinowitz explained:

‘[P]orn’, in contrast to its lengthier cousin ‘pornography’, has become a popular culture phenomenon; the term ‘porn’ is used more casually, in descriptions of highly pleasurable, entertaining and educational categories of everything from erotic videos to cuisine—‘food porn’ and even the expanded appreciation of the natural world via ‘nature porn’.

Shayefar Decl. Ex. 28 ¶ 52, Dkt. 98-11 at 18.

Calista also argues that the word “tube” is generic and relies on Mr. Rabinowitz’s expert report and the deposition of Mr. Cardone. Mr. Rabinowitz explained in his expert report that:

What most consumers refer to categorically as ‘tube sites’ represents the largest segment (by popularity and traffic counts) of all known adult entertainment streaming video web sites online. A tube site, whether as primary or affiliate operator, will provide a searchable catalog of video clips from one or many video content providers or studios for consumers to watch. If the consumer is interested and seeks more of a particular variety of content from a specific film or studio, the tube site will typically link that user to an area online where the consumer can pay for access to watch, buy, or download the full movie for example, versus just sample clips.

Shayefar Decl. Ex. 23 ¶ 22, Dkt. 98-11 at 9. Mr. Rabinowitz also testified that “[cjhances are very likely at this point that the average consumer clearly understands that a tube site is at least a place to get free content samples in a video format.” Shayefar Decl. Ex. 12a at 182:6-11, Dkt. 98-1 at 174. Mr. Rabinowitz concluded that “the definition of what people are saying is a porn tube has become generic.” Id. at 181:21-23. Finally, Calista also cites to the deposition of Mr. Cardone and his acknowledgement that ‘tube’ is “a generally recognized name for a website that streams videos,” Shayefar Decl. Ex. 14 at 71:4-6, Dkt. 98-7 at 16, and that “porn-tube.com” is a “tube site,” id. at 72:17-23, Dkt. 98-7 at 17.

Tenza argues that Mr. Rabinowitz’s report and use of the terms “tube site” and “porn” do not indicate that the terms are generic. Specifically, Mr. Rabinowitz stated that the term “tube site” is generic for adult-entertainment streaming websites, and he did not discuss the term “tube” in isolation. Shayefar Decl. Ex. 23 ¶ 22, Dkt. 98-11 at 9. Because Mr. Rabinowitz did not ascribe an independent meaning to the term “tube,” Tenza argues that there is no evidence that this term in isolation is generic. Id. ¶¶3, 7, 9, 22, 31, 42, 43, 50 (using the phrase “tube site” to describe “an adult entertainment streaming video web site”).

Further, Tenza argues that the quoted paragraph from Mr. Rabinowitz’s report regarding the term “porn” indicates that “porn” is suggestive. Tenza relies on Mr. Cardone’s explanation of the term “porn” versus “pornography,” explaining that pornography “makes you feel a bit uncomfortable ... it is something that’s done with— almost a malicious intent, it could be—it could be said.” Tauger Decl. Ex. 0 at 69:22-25, Dkt. 99-16 at 5. On the other hand, Mr. Cardone described “porn” as “something indulgent,” “a bit tongue in cheek,” and as “a fun word.” Id. at 70:19-23. The distinction between “pornography” and “porn” was also noted by Calis-ta’s expert witness Marc Randazza, who explained that the word “porn” is used in phrases such as “food porn and nature porn,” phrases that have “nothing to do with sexuality.” Tauger Decl. Ex. N at 86:18-19, Dkt. 99-15 at 4. Mr. Randazza concluded that “ ‘porn’ connotes something that’s more acceptable, more socially tolerable as opposed to ‘pornography,’ which would have colloquially a more clinical or a more negative term understanding to it.” Id. at 86:19-23. Finally, Tenza notes that its expert, Mr. Rabinowitz, explained this conclusion in paragraph 52 of his report and that Calista’s reliance on this paragraph is misplaced. Tauger Decl. Ex. L ¶ 52, Dkt. 99-13 at 3.

The parties’ conflicting explanations of the meaning of the words “porn” and “tube” distinguish this case from Surgicenters, where the court was not presented with similar competing evidence on a motion for summary judgment. See Surgcenters of Am., Inc. v. Med. Dental Surgeries, Co., 1976 WL 21075, at *5 (D.Or. Aug. 24, 1976) aff'd, 601 F.2d 1011 (9th Cir.1979).

Legally, there also are several aspects of this case that distinguish it from Surgicen-ters. First, and unlike the plaintiffs in Surgicenters, Tenza did not provide a definition of the '197 Registration that is descriptive—instead, Tenza argues that the component parts and the '197 Registration are suggestive or at least descriptive with secondary meaning. Second, the Ninth Circuit, in upholding the district court’s decision in Surgicenters, noted the significance of the agreed upon dictionary definitions, the 45 exhibits the parties stipulated to and submitted as evidence, and the fact that there were no “consumer surveys or extensive advertising campaigns ... presented to prove that consumers” connected the disputed mark with the plaintiff. 601 F.2d at 1019. Here, the parties disagree as to relevant dictionary definitions, have not stipulated or agreed to any particular exhibits, and provide competing consumer surveys.

Thus, although “generic individual terms can be combined to form valid composite marks,” Filipino Yellow Pages, Inc., 198 F.3d at 1146 (citing Surgicenters, 601 F.2d at 1017), there is no presumption that a court must always look at the component parts of a composite mark when analyzing the issue of genericness. The danger in expanding Surgicenters in the way advocated by Calista is that it would overlook the Ninth Circuit’s “explicit recognition that ‘words which could not individually become a trademark may become one when taken together.’ ” Id. at 1148 (quoting Surgicenters, 601 F.2d at 1017). Further, even though dictionary definitions may be helpful in assessing genericness, these dictionary definitions are “not determinative” of “ ‘how a term is understood by the consuming public.’ ” Id. at 1148 (quoting Surgicenters, 601 F.2d at 1015 n. 11). Even after the ruling in Surgicenters, a district court should take a “holistic approach to evaluating composite terms.” Id. at 1149. The key inquiry is whether there is evidence “ ‘that to the consuming public the primary significance of the term’ ” is to denote the service or product and not its source. Id. (quoting Park ’N Fly, 718 F.2d at 330).

The Court concludes that there is a genuine dispute of material fact regarding whether the terms “tube” and “porn” are, in isolation, generic terms. As such, the scenarios addressed in In Re Audio Book Club, Inc., 52 U.S.P.Q.2d 1042, at *2-3, and Surgicenters, 601 F.2d at 1018-19, are inapplicable. Moreover, even if the terms were generic individually, the factfinder would still need to analyze the '197 Registration as a whole in the market place to determine if it is generic. See also Abercrombie & Fitch, 486 F.3d at 636 (explaining that a court must look at the mark in its entirety).

1. Genericness

a. Use by Competitors

Use of a putative mark by a party’s competitors that has not been contested may evidence genericness. McCarthy on Trademarks and Unfair Competition § 12:13; Bos. Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 19 (1st Cir.2008) (holding that “duck tours” is a generic name of amphibious sightseeing tours and relying on the widespread generic use of “duck” and “duck tours” by other companies around the country that provide the same amphibious sight-seeing services); Self-Realization Fellowship Church v. Ananda Church of Self-Realization, 59 F.3d 902, 909 (9th Cir.1995) (finding that the term “self-realization” “describes the class of Yoga spiritual organizations” and relying on declarations of officials in other Hindu-Yoga organizations).

Calista argues that the '197 Registration is generic because there are more than 3,200 registered domain names that use the term “porntube,” 306 registered domain names use the hyphenated variant “porn-tube,” and 800 registered domains use the inverted phrase “tubeporn.” Fray-Witzer Decl. Exs. 1-3, Dkts. 97 at 5-42. Calista adds that in a “Google search” for the phrase “porn tube,” it found more than 7.75 million hits for websites that use the phrase in their titles. Tenza’s expert, Mr. Rabinowitz, explained that his “conservative” belief was that one-quarter to one-third of all free adult-entertainment websites describe themselves as being a “porn tube.” Shayefar Decl. Ex. 12b at 326:4-14, Dkt. 98-1 at 219.

In response, Tenza disputes the weight of the evidence provided by Calista. Relating to the 3,200 domain names that allegedly use the term “porn tube,” Tenza contends that there is no evidence of what use is made of the domain names and that there is no evidence that the source of the search, www.namedropper.com, is a reliable source of information or a recognized ICANN-certified register. Tauger Decl. Ex. 4, Dkt. 115-4. Tenza contends that the relevant universe of domain names using the character string ‘porntube’ is reflected in Calista’s response to Tenza’s Interrogatory No. 1, which identified 147 such domain names. Tauger Decl. Ex. 4, Dkt. 115-5 at 5-7. Of these listed domain names, Mr. Cardone explains that there are at most 45 unique registrants. Car-done Deck, Dkt. 116 ¶ 4. Tenza’s expert, Mr. Rabinowitz opined that he has seen between three to four thousand adult-entertainment video streaming websites during the course of his career. Tauger Deck Ex. 6 at 325:20-25, Dkt. 115-6. Based on these figures, Tenza estimates that there are approximately two percent of registrants for adult-entertainment video streaming websites that may include the '197 Registration in their domain name. Parsing of the mathematics aside, particularly what the correct numerator and denominator would be to determine the percentage of adult-entertainment video streaming websites that may use the '197 Registration, the Court concludes that Tenza’s argument that this potential use is de minimis presents a question of fact that is inappropriate for resolution at summary judgment.

Tenza also critiques Calista’s evidence of “Google ‘hits.’ ” Tenza relies on the explanation of its expert Mr. Rabinowitz that a title search with an internet search engine such as Google relies on meta-data and tags that are only viewable “in the very topmost gray bar [of a web browser], but is above the URL address line where the average person looks and conducts their business with the web browser.” Tauger Deck Ex. 6 at 81:11-18, 83:7-11. Mr. Ra-binowitz explained that competitors in the adult-entertainment steaming video website industry use these meta-tags to “coattail the broader reach and awareness and visibility of the brand in question” and specifically use the names of competitors in their meta-tags. Id. at 325:10-20. According to Tenza, these Google results are further tainted because Google tailors search results depending upon the computer used to conduct the search, although there are methods to control for such variations. Tauger Deck Ex. 7, Dkt. 115-7 at 63: 13-64:6. The Court notes that Tenza’s criticism of Calista’s search engine methodology further creates a dispute of material fact that is inappropriate for the Court to resolve at summary judgment.

b. Generic Use by Tenza

“If the proponent of trademark status itself uses the term as a generic name, this is strong evidence of genericness.” McCarthy on Trademarks and Unfair Competition § 12:13 (collecting cases); Surgicenters, 601 F.2d at 1013 n. 5 (“If the plaintiffs used the mark from the very beginning in a way that the public connected the term with the service rather than with the server, then they have contributed to the genericness of the term.”). Calista argues that Tenza, throughout its own website, repeatedly uses the phrase “porn tube” generieally to describe a type of video and not to identify the source of the videos (ie., www.porntube.com).

This argument relates to the “who-are-you/what-are-you” test, where “a valid trademark answers the former question, whereas a generic product name or adjective answers the latter.” Rudolph Int'l Inc. v. Realys, Inc., 482 F.3d 1195, 1198 (9th Cir.2007) (citing Filipino, 198 F.3d at 1147). Calista’s argument reduces to whether Tenza used the phrase “porn tube” as a generic adjective, Calista cites to Tenza’s title description for the www. portube.com website, which reads: “Watch FREE pom videos at PornTube.com with new porn tube videos added daily.” Fray-Witzer Deck Ex. 7, Dkt. 97 at 62. Calista argues that because Tenza generated this content, see Shayefar Deck Ex. 12a, Rabi-nowitz Depo. at 84:8-85:12, Dkt. 98-1 at 159-60, it is an indication that Tenza uses the phrase “porn tube” generieally. Calis-ta also notes several other instances where Tenza used the phrase “pom tube” in various captions of videos that depict specific sexual acts. See Shayefar Deck Ex. 12b, Rabinowitz Depo. at 269:2-6, 270:22-25, 273:3-4, 274:5-12, 276:11-15, 277:13-17, 279:4-11, 280:7-12, Dkt. 98-1 at 202-213; see also Shayefar Decl. Ex. 29, Dkt. 98-12 at 50-63. Mr. Rabinowitz, when asked about these uses of the phrase “porn tube,” stated that “[i]t looks to be an attempt to describe the content contained within this category of videos on the Porn-Tube.com site” and was “written with the widest variety of high traffic catch phrase and search terms.” Id. at 269:18-25.

Tenza responds that Mr. Rabinowitz also noted that the references could be specific references to videos on Porn-Tube.com. Tauger Decl. Ex. 6 at 318:9-20, Dkt. 115-6 at 10. Mr. Rabinowitz, however, explained that it was not clear whether these broadly-worded descriptions “are referring to their own material or to external material.” See Shayefar Decl. Ex. 12b, Rabinowitz Depo. at 271:20-25. Moreover, Tenza argues that the use of the phrase “porn tube” in the caption for videos on Tenza’s website, see Shayefar Decl. Ex. 29, Dkt. 98-12 at 50-63, were references to the source and were not meant to describe a type of product. Tenza argues that although these references should have been capitalized, used as one word, and noted with a registered trademark symbol, these small errors do not mean that Tenza meant to use the phrase “porn tube” to indicate the type of product rather than the source. Thus, it is unclear whether the use of “porn tube” in these video captions reference adult-entertainment streaming videos generally or the videos that stream specifically at Tenza’s website. Upon examining the video descriptions, a jury could reasonably conclude that the use of this phrase was not specific to Tenza’s website. Because a factfinder could, but need not, reasonably reach such a conclusion, this disputed material fact cannot be resolved on summary judgment.

c. Dictionary Definitions

Although dictionary definitions are not determinative, they “are relevant and sometimes persuasive in determining public usage.” McCarthy on Trademarks and Unfair Competition § 12d3. Dictionary definitions may be used to analyze component parts of a composite mark to determine if the composite mark is itself generic. See Surgicenters, 601 F.2d at 1015-20. Even where a composite term is not listed in a dictionary, it is still possible to find that composite term generic. Nartron Corp. v. STMicroelectronics, Inc., 305 F.3d 397, 407 (6th Cir.2002) (collecting cases).

Calista maintains that although there is no dictionary definition for the term “porntube,” the www.dictionary.com •definition of “porn” supports the proposition that “porn” is commonly understood as an abbreviation for “pornography” and “tube” is slang for “television.” Calista also references a Wikipedia search for “porntube” that redirected the user to an entry on amateur pornography. Tenza argues that www.dictionary.com is not an authoritative dictionary, and that the Court should favor Webster’s Third New International Dictionary, which does not mention “television” as a definition for tube. Tenza also criticizes Calista’s reliance on Wikipedia as an inadmissible source of information.

Regarding the correct dictionary to use in defining the component parts of the '197 Registration, the parties’ arguments establish that the terms “porn” and “tube” have competing definitions and, therefore, the “correct” definition for either term is in dispute. This genuine dispute of material fact precludes relying on the dictionary definitions of “porn” or “tube” as set forth in the record and precludes granting or denying either party’s cross-motion for summary judgment on this issue. Regarding Tenza’s challenge to Calista’s reference to Wikipedia, the Court notes that for the purposes of the pending motions, it is further evidence that there may be a genuine dispute of material fact. In short, the evidence from the parties does not establish that either party is entitled to summary judgment on their respective positions.

d. Generic Usage in Media

Usage of a putative mark “in the media such as in trade journals and newspapers” in a generic manner may establish a lack of trademark protection. McCarthy on Trademarks and Unfair Competition § 12:13. This evidence may establish that the consuming public associates the term with a general product and not with the product’s source. See KP Permanent Make-Up, 408 F.3d at 604; see also Surgicenters, 601 F.2d at 1017-18 (finding the term “surgicenter” to be generic based on evidence from statements from medical experts, news articles, and medical publications); Classic Foods Int’l Corp. v. Kettle Foods, Inc., 468 F.Supp.2d 1181, 1189-94 (C.D.Cal.2007) (finding the term “kettle” when used for potato chips to be generic based in part on evidence of 37 articles using the term “kettle” to refer to a cooking method for potato chips generally); Warner Bros. Entm’t v. Global Asylum, Inc., 2012 WL 6951315, at *20 (C.D.Cal. Dec. 10, 2012) (rejecting evidence that a few scientists and news outlets refer to a particular human sub-species as “hobbits” as evidence that “the consuming public associates the term with this subspecies rather than with the Tolkien characters”), aff'd sub nom. Warner Bros. Entm’t, Inc. v. Global Asylum, Inc., 544 Fed.Appx. 683 (9th Cir.2013).

Calista argues that it identified several dozen generic uses of the phrase “porn tube” in adult-entertainment news sources and magazines, television news shows, and academic journals. Shayefar Decl. Exs. 30-31, Dkts. 98-13 to 98-15. Further, Calista reviewed these articles with Tenza’s expert, Mr. Rabinowitz, and asked whether the phrase “porn tube” was used “in a generic fashion, not as it refers to PornTube.com.” See Shaeyfar Decl. Ex. 12a at 107:22-24, Dkt. 98-1 at 166. Although Mr. Rabinowitz answered the question differently when presented with different articles, he noted that these news sources “seem to be bouncing back and forth between [the phrase] tube sites and a couple of different environments as well as in this specific one [“porn tube”].” Id. at 108:8-14. Mr. Rabinowitz conceded that with some media sources, the phrases “tube site” and “porn tube” were used interchangeably. Id. at 109:5-19.

Tenza, in response, asserts that these references to “porn tube” constitute “hearsay quote[s]” or otherwise indicts the validity or relevance of the use of the phrase “porn tube.” Further, Tenza offers articles that reference the phrase “tube site” and that do not use the phrase “porn tube” when describing adult-entertainment video streaming content. Táuger Decl. Exs. 12-20, Dkts. 115-12 to 115-20. The competing evidence offered by the parties of media usage of the phrase “porn tube” versus the use of the phrase “tube site” is another example of competing evidence that is best resolved by a factfinder. The Court therefore declines to weigh the competing evidence from the parties on this point, particularly in light of the parties’ arguments going to the relevance and weight that ought to be afforded to any particular source article. Moreover, the Court also declines to find that the examples provided by Calista may not evidence generic use of the phrase “porn tube.” Evidence of media usage, combined with the public’s understanding of '197 Registration, may be sufficient for the factfinder to conclude that the '197 Registration is generic. Cf. KP Permanent Make-Up, 408 F.3d at 606. As a result, this source of evidence does not favor grating either party’s motion for summary judgment.

e. Persons in the Trade

“The understanding of those who are familiar with the marketplace usage of the designation in question can be helpful on the genericness issue.” McCarthy on Trademarks and Unfair Competition § 12:13; see also Self-Realization Fellowship Church, 59 F.3d at 909-10 (analyzing “declarations of officials in other Hindu-Yoga organizations that ‘Self-realization’ ‘is the goal of all religious practice,’ ‘is a term used to describe the goal of Yoga,’ and is ‘the systematic process of unfolding who we really are.’ ”).

Calista offers the expert testimony of Mr. Randazza, who explained in his report that “the industry regards the term ‘porn tube’ as a generic term for a tube site containing pornography.” Shayefar Decl. Ex. 13 ¶ 27, Dkt. 98-2 at 8. Mr. Randazza further opines that “[w]hen used in conversation about members of the adult-entertainment industry, the term ‘porn tube’ does not identify any particular website, and refers generally to a site that displays a collection of streaming pornographic videos.” Id. ¶ 28. To undermine Mr. Randazza’s expert opinion, Tenza cites to a letter sent by Mr. Randazza to an adult-industry client that used the phrase “tube site” but did not use the phrase “porn tube.” Tauger Deck Ex. U, Dkt. 22. Although Tenza believes that this negates Mr. Randazza’s professional opinion, it may also be evidence that the phrases “porn tube” and “tube sites” are sometimes used interchangeably. In the same vein, Tenza’s reference to Mr. Zhukov’s use of the phrase “tube site” rather than “porn tube” in his deposition testimony is not necessarily dispositive, particularly in light of his explanation that because the parties were only discussing porn sites during his deposition, he found it unnecessary to “spend the time to say the extra word if we’re not specifying whether its porn or not pprn.” Tenza’s final attempt to undermine Mr. Randazza is based on his experience in the industry as an attorney rather than a business owner. This, however, does not necessarily eliminate the relevance of his opinion, but instead goes to the weight of this evidence. Thus, Cal-ista presents some evidence that some people in the adult-entertainment profession consider the phrase “porn tube” to be generic.

Calista also cites to the deposition of Mr. Rabinowitz, Tenza’s expert, and his apparent “back peddling” from statement that he had never encountered the phrase “porn tube” used in a generic manner. The exact exchange between counsel for Calista and Mr. Rabinowitz is as follows:

Q: When you were deposed last time, we spoke a little about whether or not the phrase “porn tube” was ever used in the industry. I believe that you said something to the effect of in 15 years of being in the industry, you had never heard people inside the industry referring to these sites as “porn tube sites.” Do you recall that?

A: I do recall that, and in context I’m referring to one-to-one discussions, not necessarily public statements, but I did actually go through—in fact, since the last deposition, I took a fairly extensive stock of thinking about all of the engagements and the clients and the like, and at no time, whether I was in a buyer or seller position as my primary roles related to adult Internet traffic, has there been a reference to “porn tube” as opposed to “tube site” in this context, not by myself to a prospective client or from a prospective client to me.

Shayefar Decl. Ex. 12b, Rabinowitz Depo. at 241:7-24, Dkt. 98-1 at 199. At most, Mr. Rabinowitz’s testimony about industry usage creates a conflict with the opinion given by Mr. Randazza. Although Calista went on in that deposition to bring articles to Mr. Rabinowitz’s attention that purportedly use the phrase “porn tube” as a descriptive adjective and not as a source identifier, the significance of these media sources is disputed by the parties.

Calista also argues that according to Mr. Rabinowitz, the website www.gfy.com is the “single most popular sort of water cooler environment or message board that has existed to date” for the adult-entertainment industry. Shayefar Decl. Ex. 45 at 41:5-10, Dkt. 114-8 at 4. Calista then cites to a “message thread” that “generated more than 200 comments” on the UDRP decision against Calista. Shayefar Decl. Ex. 36, Dkt. 114-3. Tenza’s response to this evidence—that the 200 comments are anonymous, a single user may make multiple comments under the different names, and that this is a small fraction of total participants at gfy.com—goes to the weight that ought to be afforded to the evidence. Like the other industry articles provided by the parties, this evidence creates a genuine dispute of material fact,

f. Consumer Surveys

“Consumer surveys have become almost de rigueur in litigation over genericness.” McCarthy on Trademarks and Unfair Competition § 12:14. In order for a consumer survey to be helpful, it must be “directed at the issue of consumer perception as to the significance and meaning of the designation in issue.” Id. Moreover, surveys “ ‘in trademark cases may be considered so long as they are conducted according to accepted principles.’ ” Clicks Billiards, Inc., 251 F.3d at 1262 (quoting Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., Inc., 240 F.3d 832, 840 (9th Cir.2001)). Any challenges regarding “ ‘technical inadequacies,’ ” “ ‘including the format of the questions or the manner in which it was taken, bear on the weight of the evidence, not its admissibility.’ ” Fortune Dynamic, Inc., 618 F.3d at 1036 (quoting Keith, 858 F.2d at 480).

Tenza argues that the Morgan survey evidence and the survey evidence from Calista’s expert Thomas Maronick indicate that the '197 Registration is not generic. Mr. Maronick surveyed 247 qualified respondents and found that 49 percent of the respondents recognized “porn tube” as a brand name. Tauger Decl. Ex. W, Dkt. 99-24 at 7. Mr. Maronick concluded:

[L]ess than half of all respondents (49%) saw the phrase ‘porn tube’ as a brand name, with the majority (51 %) either seeing it as a common name or as ‘don’t know/not sure.’ Thus, in comparison with other commonly-used terms in the world of adult-oriented websites and streaming video, the ‘porn tube’ mark must be considered as a very weak trademark source identifier.

Id. at 7-8. Tenza’s expert, Mr. Morgan, found that 79 percent of the 840 qualified respondents identified “PORNTUBE” as a brand name. Tauger Decl. Ex. V, Dkt. 99-23 at 9. Mr. Morgan also found that 51 percent of survey respondents when asked if “PORNTUBE” was as an adult-entertainment website they had heard of responded in the affirmative. Id. at 10.

Calista argues that consumer surveys are not relevant in this case. Calista’s argument that consumer surveys may only be considered where a court is analyzing a newly-coined or fanciful term, or in the context of a descriptiveness analysis, is unavailing. As discussed above, see supra Section A.1 (discussing the relevance of the Morgan survey) and Section B.2 (discussing the method by which to analyze a composite trademark), survey evidence is relevant in this case. The question is not whether Tenza “coined either the word ‘porn’ or the word ‘tube,’ ” Calista’s Memo., Dkt. 95 at 25, but what the primary significance of the '197 Registration is to the consuming public. See Filipino Yellow Pages, 198 F.3d at 1149. As noted above, the Morgan survey evidence is subject to criticism, which may affect the weight a factfinder will afford this evidence. Moreover, the parties dispute whether the Maronick survey evidence supports the notion that Tenza has a protected