Full opinion text
GLASSER, District Judge. The motions currently before the Court arise out of a dispute concerning the sale and distribution of Lladro porcelain figurines in the United States (“U.S.”). In September 1983, plaintiff Disenos Artísticos E Industriales, S.A. (“DAISA”) commenced a civil action, 83 CV 4149, against defendants, Edward Work, Dolores Work, and Karen-Leslie Co., alleging copyright infringement. Karen-Leslie Co., Inc. was added as a new party defendant in December 1983. In December 1983, Karen-Leslie Co., Inc. counterclaimed against DAISA, Weil Ceramics & Glass, Inc. (“Weil”), and Lladro, S.A. asserting antitrust violations. In May 1984, Weil commenced a civil action, 84 CV 1964, against Edward Work, Dolores Work, Karen-Leslie Co., and Karen-Leslie Co., Inc., alleging trademark infringement. In May 1984, Karen-Leslie Co., Inc. again counterclaimed against DAI-SA, Weil, and Lladro, S.A. repeating the antitrust assertions. The two civil actions were consolidated in July 1984. I. THE PARTIES Plaintiff and counterdefendant DAISA, a Spanish corporation, designs Lladro porcelain and alleges that it owns the U.S. and foreign copyrights on these products. Counterdefendant Lladro, S.A., another Spanish corporation, manufactures Lladro porcelain in Spain. Plaintiff and counterdefendant Weil, a New York corporation, alleges that it is the designated exclusive importer and distributor of Lladro figurines in the U.S. and that it is the registered owner of the U.S. trademark. Weil is wholly owned by Lladro Exportadora, S.A., a Spanish corporation. Lladro Exportadora, S.A., DAISA, and Lladro, S.A. are each wholly owned by Sodigei, S.A., a Spanish corporation. Sodigei is owned by the Lladro brothers. See Memorandum and Order dated February 18, 1986, 110 F.R.D. 500 .(Scheindlin, Mag.) at 501. Defendant and counterplaintiff Karen-Leslie Co., a partnership that was located in New York, apparently ceased doing business on December 31, 1980. See Counter-defendants’ Memorandum of Points and Authorities in Support of the Motion for Summary Judgment Regarding the Antitrust Issues; and for Dismissal of the Counterclaims, Exhibit B. Defendant and counterplaintiff Karen-Leslie Co., Inc., a New York corporation incorporated on December 10, 1980, see id,., acquires giftware and resells it to retailers. Defendants Edward Work and Dolores Work are officers of Karen-Leslie Co., Inc. II.THE MOTIONS Prior motions, if relevant, will be discussed below under the appropriate subject headings. Currently before the Court are the following motions: defendants have moved for summary judgment on plaintiff DAISA’s copyright causes of action and plaintiff Weil’s trademark causes of action; plaintiff Weil has cross-moved for summary judgment on its trademark causes of action; and counterdefendants have moved for summary judgment on the antitrust counterclaims. III.SUMMARY JUDGMENT Pursuant to rule 56(c) of the Federal Rules of Civil Procedure, counterdefendants’ motion may be granted only if the court determines “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In reaching this determination, “the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Insurance Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985)), cert. denied, — U.S. -, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). While “[t]he movant bears the initial burden of demonstrating ‘the absence of a genuine issue as to any material fact,’ ” this burden may be met by “simply ... pointing out that the plaintiff has failed to present any evidence to establish a necessary element of the cause of action.” Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.1987) (citations omitted). The nonmoving party then bears the burden of “set[ting] forth specific facts showing that there is a genuine issue for trial.” Fed.R. Civ.P. 56(e); Apex Oil, 822 F.2d at 252 (citations omitted). As enunciated by the Supreme Court in a recent antitrust decision, the nonmoving party’s burden requires “more than simply showing] that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed. 2d 538 (1986) (citations omitted). With these general principles in mind, the Court will review each of the claims and the evidence submitted by both sides. IV.COPYRIGHT ISSUES Defendants have moved for summary judgment on plaintiff DAISA’s copyright cause of action. Defendants assert, first, that their sale in the U.S. of lawfully made copies of Lladro goods is not an infringement of plaintiff DAISA’s copyrights. Second, defendants assert that plaintiff DAISA has no valid copyright in the Lladro figurines sold by defendants. A. BACKGROUND The following facts appear to be largely undisputed, at least for purposes of this motion. DAISA first published the thirty-one sculptural works at issue in January 1978 and January 1979 and for three or four years thereafter these items were manufactured and distributed without any notice of copyright. These works were registered with the U.S. Copyright Office in April 1982. Just before registration, the omission of the required copyright notice was discovered by DAISA. According to plaintiffs, “DAISA and the factory quickly instituted new manufacturing procedures to place the proper copyright notice on the porcelain that was thereafter manufactured and distributed.” Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment on the Copyright and Trademark Causes of Action at 10. As discussed below, no copyright notice was added to those items already manufactured but not yet sold to the public. B. DISCUSSION For the reasons set forth below, this Court finds that plaintiff DAISA does not have a valid copyright in the works at issue. Because the works at issue are thus not protected by the U.S. Copyright Act, plaintiffs’ claim of infringement is not cognizable as a matter of law, and defendants’ motion for summary judgment as to plaintiff’s copyright claim is granted. 1. Validity of the Copyright In support of their argument that DAI-SA does not have a valid copyright in any of the Lladro figurines sold by defendants, defendants argue that for three to four years the Lladro group distributed copies of these works without the copyright notice required by statute and that the Lladro group made no effort to add proper notice to those copies distributed to the public after the omission was discovered. Defendants’ Memorandum in Support of Motion for Summary Judgment at 2. Under the 1976 Copyright Act, a notice of copyright must be placed on all publicly distributed works protected by the Act. See 17 U.S.C. § 401(a). A work published without proper notice is, in general, injected into the public domain. See id.; Shapiro & Son Bedspread Corp. v. Royal Mills Associates, 764 F.2d 69, 72 (2d Cir.1985); 2 M. Nimmer, Nimmer on Copyright § 7.14[A][2] (1987). However, omission of the required notice can be cured under section 405(a) of the Act if one of the following conditions is met: (1) the notice has been omitted from no more than a relatively small number of copies ... distributed to the public; or (2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies ... that are distributed to the public in the United States after the omission has been discovered; or (3) the notice has been omitted in violation of an express requirement in writing that, as a condition of the copyright owner’s authorization of the public distribution of copies ..., they bear the prescribed notice. 17 U.S.C. § 405(a). In this case, it is undisputed that only the second provision of § 405(a) is applicable. The parties apparently agree, at least for purposes of this motion, that the thirty-one works at issue were registered within five years of the publication without notice. The sole issue, therefore, is whether plaintiffs made a reasonable effort to add notice to all copies distributed to the public in the United States after the omission was discovered. Plaintiffs cite Shapiro & Son Bedspread Corp. v. Royal Mills Associates, 764 F.2d 69 (2d Cir.1985), as controlling authority on this issue, but that case is clearly distinguishable. In Shapiro, the district court had granted the defendants’ motion for summary judgment on the plaintiff’s claim of copyright infringement, holding that plaintiff’s copyright was invalid because plaintiff had not demonstrated that it had made any effort to add proper notice to its bedspreads after discovering that the bedspreads bore deficient notice. Id. at 72. The district court, however, had ignored the fact that the plaintiff had, upon discovering its defective notice, taken “prompt steps to correct the notice on the bedspreads in its inventory and to ensure that it shipped no further units without proper notice affixed.” Id. at 74. The district court focused, instead, on the plaintiff’s decision not to add proper notice to those bedspreads already shipped to retailers although not yet sold to customers. See id.; see Shapiro & Son Bedspread Corp. v. Royal Mills Associates, 568 F.Supp. 972, 977 (S.D.N.Y.1983) (denying motion for preliminary injunction). In reversing the district court, the Second Circuit noted preliminarily “that if no effort is made to add proper notice to copies distributed to the public after the defective notice is discovered, no cure is accomplished.” 764 F.2d at 73 (emphasis in original). The court then held that if “some effort is made, the question whether it was ‘reasonable’ is one of fact.” Id. (emphasis added) (citation omitted). The Second Circuit further explained that the inquiry as to reasonableness under section 405(a)(2) relates to all copies distributed to the public after the defect or omission is discovered. Id. at 73-74. Specifically, in the case before it, the court found that the copies at issue included those still in the plaintiff’s inventory, those already in the distribution chain but not yet sold to consumers, and those manufactured subsequent to discovery of the defect or omission. Id. at 74. It was not disputed in Shapiro that the plaintiff had added proper notice to those bedspreads manufactured subsequent to discovery of the defective notice. Id. at 71. The Second Circuit’s criticism of the district court’s conclusion involved the lower court’s disregard of the plaintiff’s successful re-labeling of those bedspreads still in inventory and the lower court’s conclusion that the plaintiff’s decision not to re-label goods already shipped to retailers was unreasonable as a matter of law. Id. at 74. The Second Circuit concluded that these factors raised genuine issues of fact as to the reasonableness of the plaintiff’s efforts. Id. at 74-75. The Second Circuit’s decision in Shapiro does not bar this court from granting defendants’ motion for summary judgment. Rather, plaintiff DAISA’s response to discovery of its omission falls within the preliminary rule set forth in Shapiro that when there is no effort made to add proper notice to all copies, “no cure is accomplished.” Id. at 73. While plaintiff DAISA alleges that it promptly instituted procedures to insure that all newly manufactured figurines had proper notice, it also concedes that none of the figurines in its inventory or in the hands of its distributors were properly labeled before distribution to the public. There is no support in Shapiro for the proposition that merely taking prospective action to correct an omission is adequate under section 405(a)(2). Indeed, the plaintiff in Shapiro made that argument before the district court, see 568 F.Supp. at 977, and that court did not find it persuasive, nor, apparently, did the Second Circuit. Plaintiffs have cited only Shapiro in support of their argument against defendants’ motion. An extensive, although perhaps not exhaustive, search by this Court has revealed no support for plaintiffs’ position that there is at least a factual dispute with respect to its efforts to cure its omission of notice. No court addressing the issue has concluded, explicitly or implicitly, that a prospective cure, by itself, satisfies section 405(a)(2) with respect to copies not yet distributed to the public. See Donald Frederick Evans & Associates v. Continental Homes, Inc., 785 F.2d 897, 911-12 (11th Cir.1986) (plaintiff’s showing that notice was added to second printing of its sales brochures did not effectuate a cure under 17 U.S.C. § 405(a)(2) because, inter alia, plaintiff made no showing that it had made a reasonable effort to add notice to those copies in its first printing that had not yet been distributed at time omission was discovered); M. Kramer Manufacturing Co. v. Andrews, 783 F.2d 421, 444 (4th Cir.1986) (“Based on the statutory language, a copyright owner does have an obligation to add copyright notice to games that are stored or that have been distributed to retail dealers, but not yet to the public.”) (emphasis added); Animal Fair, Inc. v. AMFESCO Industries, Inc., 620 F.Supp. 175 (D.Minn.1985) (slipper manufacturer’s efforts to cure its inadvertent omission of copyright notice on sewn-in seam labels were found to be reasonable because manufacturer took “[ijmmediate action ... to remedy the problem” by instructing its production facility to add notice to those copies apparently not yet shipped and to add notice to all copies subsequently manufactured; while manufacturer did not send replacement labels to its retail outlets to cover copies already shipped at time omission was discovered, it was undisputed that those copies had notice on hangtag attached to each pair of slippers) aff'd without opinion, 794 F.2d 678 (8th Cir.1986); Videotronics, Inc. v. Bend Electronics, 586 F.Supp. 478, 483 (D.Nev.1984) (plaintiffs decision to continue manufacturing its double board program without copyright notice until its scheduled conversion to a single board program, which did include proper notice, precluded a conclusion that plaintiffs omission was cured under § 405(a)(2) and established instead that plaintiff made “no effort”); Innovative Concepts in Entertainment, Inc. v. Entertainment Enterprises, Ltd., 576 F.Supp. 457, 460-61 (E.D.N.Y.1983) (plaintiff made reasonable efforts to cure omission of notice by applying stickers to games still in its possession and by mailing stickers to its distributors “in an effort to affix notice to games already distributed”); see also House of Hatten, Inc. v. Baby Togs, Inc., 668 F.Supp. 251 (S.D.N.Y.1987); 2 M. Nimmer, supra, § 7.13[B][2]. Indeed, the language of the statute would seem to preclude such a result. See 17 U.S.C. § 405(a)(2) (copyright is not invalidated if “a reasonable effort is made to add notice to all copies distributed to the public in the United States after the omission has been discovered”) (emphasis added); see also Shapiro, 764 F.2d at 73-74 (statute covers copies in inventory and in intermediate stage of distribution as well as those made in the future). Plaintiff attempts to excuse the omission of notice from those copies in inventory and those already shipped to distributors by asserting that any method of affixing notice to these copies would have required an unreasonable effort. Plaintiff seems to be arguing that even though it decided not to add notice to these pieces, its consideration of the problem and several possible solutions to it itself constituted a reasonable effort under the statute. This argument is not persuasive. Plaintiff has not established that all, or even most, attempts to affix notice would have been unreasonable or unavailing. The regulations promulgated by the U.S. Copyright Office under section 401(c) of the Copyright Act provide a number of examples of acceptable methods of affixation, see 37 C.F.R. § 201.20(i), and specifically state that these methods are not exclusive, see id. at (a)(i). For instance, notice may be affixed directly to the work or may be affixed by use of a label or tag attached durably. Plaintiff has alleged that two methods were specifically considered and rejected— re-baking the porcelain or attaching adhesive labels. While the record indicates that the effort and expense involved in re-baking might have been unreasonable, there is no adequate showing that an attempt to affix labels or tags would have been unreasonable. Nor is there any showing that other methods were considered and found unreasonable. Plaintiffs excuse for failing to cure the omission is therefore inadequate as a matter of law. Consequently, DAISA’s copyrights on the works at issue in this action are forfeited and the works are injected into the public domain. Defendants’ motion on this issue is granted. 2. Infringement Because DAISA’s works are unprotected by the Copyright Act, plaintiff’s claim of infringement must fail as a matter of law. Therefore, defendants’ motion for summary judgment is granted as to plaintiff’s claim of infringement under sections 106 and 602(a) of the Copyright Act. V. TRADEMARK ISSUES Defendants have moved for summary judgment on plaintiff Weil’s three trademark causes of action. Plaintiff Weil has cross-moved for summary judgment on these claims. A. BACKGROUND The following facts are largely undisputed unless otherwise indicated. In 1963, Weil began to import porcelain figurines manufactured by Lladro, S.A. This porcelain bore the trademark “Lladro” and a flower logo, which had been placed on the base of the goods in Spain by the manufacturer. In 1966, the foreign manufacturer designated Weil as its exclusive distributor in the U.S. and granted Weil the right to register the trademark in the U.S. in Weil’s name. Weil filed an application with the U.S. Patents and Trademark Office (“USP-TO”) and on September 7,1967, the USPTO registered the trademark. In 1973, Lladro, S.A. acquired 50% of Weil, which had previously had no corporate relationship with the foreign manufacturer. At that time, Weil assigned its U.S. trademark registration to Lladro, S.A. In 1977, Lladro Exportadora, S.A. acquired all the shares of Weil. As mentioned earlier, Lladro Exportadora and Lladro, S.A. have a common parent, Sodigei, S.A., a Spanish corporation. In 1983, Lladro, S.A. assigned back to Weil all rights in the U.S. trademark. Lladro, S.A. sells its porcelain figurines to distributors in various countries. Defendant Karen-Leslie alleges that it purchases Lladro products in the U.S., primarily from a supplier that is an unrelated domestic corporation. Defendants’ Memorandum at 5. Karen-Leslie orders the products from its supplier, which then acquires the products overseas from Lladro, S.A.’s foreign customers and imports them into the U.S. Karen-Leslie then sells these products to U.S. retailers. B. SECTION 1115(b) CLAIM In count one of its complaint, plaintiff Weil asserts a claim pursuant to section 33(b) of the Lanham Act, 15 U.S.C. § 1115(b). In September 1984, plaintiff moved for summary judgment on this cause of action, arguing that the right to use the mark is incontestable under section 1065 and that defendants’ acts violate its exclusive right to use the mark, giving rise to a cause of action under section 1115(b) that is distinct from a cause of action for infringement under section 1114. On February 22, 1985, at oral argument on this matter, plaintiff’s motion was denied, the Court finding that section 1115(b) does not create an independent cause of action for trademark infringement. See Order dated April 23, 1985. In August 1985, defendants moved for summary judgment on this cause of action arguing that the incontestability of a mark under section 1065 and the right to its exclusive use under section 1115(b), while creating an evidentiary presumption, do not give rise to an independent cause of action. Plaintiff Weil cross-moved for summary judgment on this issue, arguing that its exclusive rights, as provided under sections 1057(b), 1065, and 1115(b), had been violated. For the reasons set forth below, plaintiff’s cross-motion is denied and defendants’ motion is granted. At oral argument on February 22, 1985 and in the April 23, 1985 order, this Court expressly held that there is no independent cause of action provided by section 1115(b). Specifically, this Court determined that registration and incontestability under sections 1065 and 1115(b) merely give rise to a conclusive presumption of trademark validity and do not provide a mechanism for vindicating a violation of a trademark owner’s rights nor a means of avoiding the problems inherent in establishing confusion under section 1114. This Court also determined that, contrary to plaintiff’s interpretation, the Supreme Court’s decision in Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985), provided no support for the argument that there is a basis for a cause of action under section 1115(b) that is distinct from an action brought under section 1114. This Court’s earlier determination is now the law of the case. The law of the case doctrine was examined in Erie Conduit Corp. v. Metropolitan Asphalt Paving Association, 560 F.Supp. 305 (E.D.N.Y.1983), in which the court quoted Justice Holmes’ statement that the doctrine does not limit a court’s power but “merely expresses the practice of courts generally to refuse to reopen what has been decided.” Id. at 307 (quoting Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)). The court in Erie Conduit relied on an oft-cited Fifth Circuit decision for a summary of factors justifying departure from the general rule that a prior determination should remain undisturbed: ‘[L]aw of the case’ ... must be followed in all subsequent proceedings in the same case ... unless ... controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice. Id. at 308 (quoting White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967)). Relying on the above principles, this Court has reviewed the papers submitted for the current motions and has found no citation of any authority that would require a different result on this cause of action. Indeed, in the only case that appears to have addressed this issue subsequent to the February 22, 1985 oral argument, the same conclusion has been reached with respect to whether section 1115(b) provides an independent cause of action. See Weil Ceramics & Glass, Inc. v. Dash, 618 F.Supp. 700, 703-04 (D.N.J.1985); see also 4A R. Callmann, The Law of Unfair Competition, Trademarks and Monopolies § 25.08, at 8-9 (4th ed. Supp.1987) (discussing import of Supreme Court’s decision in Park ’N Fly and of its denial of certiorari in Lindy Pen Co. v. Bic Pen Corp., 725 F.2d 1240, 1247 (9th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 955, 83 L.Ed.2d 962 (1985), in which Ninth Circuit rejected argument that incontestable mark should be enforced even without a showing of likelihood of confusion; concluding that “most likely inference is that the Court thinks that, although the incontestability of an infringed registration bars the defense of descriptiveness, it does not change the scope of infringement protection to which the registration is entitled. A confusingly similar relation between the marks and between the goods or services remains necessary.”). There has also been no showing that this Court’s prior decision was clearly erroneous or would work a manifest injustice. Accordingly, while this Court has the power to change its previous ruling, see Blythe Industries v. Puerto Rico Aqueduct and Sewer Authority, 607 F.Supp. 1386, 1388 (S.D.N.Y.1985) (citing Corporación De Mercadeo Agricola v. Mellon Bank, 608 F.2d 43, 48 (2d Cir.1979)), it sees no reason to do so. Furthermore, even if the Court were inclined to reconsider its previous ruling, defendants correctly point out that plaintiff has failed to show that section 1115(b) provides an express or implied right of action. See Reply Memorandum of Defendants at 1-2. This Court finds persuasive the conclusion and reasoning on this issue set forth in Weil Ceramics, 618 F.Supp. at 703-04. First, there is clearly no express right of action provided by the statute. See id. at 703. Second, applying the analysis required by Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979); and Cannon v. University of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979), there is no indication that Congress intended to create an independent cause of action under section 1115(b). See Weil, 618 F.Supp. at 703-04. Accordingly, this Court reaffirms its earlier determination that there is no cause of action under section 1115(b). The Court finds unpersuasive the arguments raised in plaintiffs cross-motion, which are basically a reiteration of its earlier arguments, and, if anything, the Court is more firmly convinced, in light of Weil Ceramics, that its earlier ruling was correct. C. SECTION 1114 CLAIM In Count Two of its complaint, plaintiff Weil asserts that defendants’ importation, distribution, and sale in the United States without Weil’s authorization of porcelain bearing the Lladro trademark infringes on plaintiff’s rights in violation of section 32(l)(a) of the Lanham Act, 15 U.S.C. § 1114(l)(a). In September 1984, plaintiff moved for summary judgment on this cause of action. At oral argument on February 22, 1985, plaintiff’s motion was denied. See Order dated April 23,1985 (denying plaintiff’s motion on this cause of action because “[tjhere are genuine issues as to material facts concerning trademark infringement under Section 1114”). In August 1985, defendants moved for summary judgment on this cause of action arguing that their sale of “genuine, first quality Lladro figurines placed in the stream of international commerce by the Lladro Group of which the alleged U.S. trademark owner [, Weil,] is a member,” Defendants’ Memorandum at 2-3, is authorized, at least implicitly, and cannot, as a matter of law, cause confusion. Therefore, defendants argue that plaintiff cannot maintain an infringement action pursuant to section 1114. Plaintiff Weil cross-moved for summary judgment arguing, among other things, that the sale of “genuine” goods in the United States without the consent of the U.S. trademark owner can infringe the rights of the U.S. trademark owner, and that as a matter of law and fact, defendants’ activities have caused confusion and have violated Weil’s rights. For the reasons set forth below, defendants’ motion for summary judgment is denied and plaintiff’s cross-motion for summary judgment is denied. In order to prevail on its section 1114 infringement claim, plaintiff must show that (1) defendants are using the trademark without plaintiff’s consent (2) in connection with the sale of goods and (3) in a manner that is likely to cause confusion. Franchised Stores of New York, Inc. v. Winter, 394 F.2d 664, 668 (2d Cir.1968); accord El Greco Leather Products Co. v. Shoe World, Inc., 599 F.Supp. 1380, 1390 (E.D.N.Y.1984), rev’d on other grounds, 806 F.2d 392 (2d Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 71, 98 L.Ed.2d 34 (1987). The parties do not dispute the second element required for a successful infringement claim but do vigorously dispute the other two elements. 1. Consent Plaintiff Weil, in support of its original motion for summary judgment, argued that defendants’ sale and distribution in the United States of products bearing the Lladro trademark is unauthorized by Weil. Defendants, in opposition to plaintiff’s motion, argued that there is a genuine issue as to whether their sale and distribution of “genuine” Lladro porcelain is directly or indirectly authorized by Weil. Relying in part on the reasoning of Parfums Stern, Inc. v. United States Customs Service, 575 F.Supp. 416 (S.D.Fla.1983), defendants argued in essence that although Weil has not authorized defendants’ sale and distribution, there is an issue as to whether the “Lladro Group,” of which Weil is a member, “can and does authorize this activity by its sale of such products in the international stream of commerce.” Defendants’ Memorandum in Opposition to Plaintiff Weil Ceramics & Glass, Inc.’s Motion for Summary Judgment at 37. At oral argument on February 22, 1985, this Court held that there were questions of material fact raised by defendants’ “enterprise” argument in support of their allegations that they are at least implicitly authorized to sell Lladro porcelain in the U.S. This Court therefore denied plaintiff’s motion for summary judgment. A very recent decision by the Second Circuit has now persuaded this Court that defendants’ argument is not tenable. In Original Appalachian Artworks Inc. v. Granada Electronics Inc., 816 F.2d 68 (2d Cir.), cert. denied, — U.S. -, 108 S.Ct. 143, 98 L.Ed.2d 99 (1987), the court determined that the reasoning of Parfums Stem has “some force” only “where the imported goods are identical to the domestic goods and are intended for sale in the United States.” Id. at 73 (emphasis added). While the court in Original Appalachian discussed the Parfums Stern reasoning only in the context of the issue of likelihood of confusion, the Second Circuit’s narrow construction of Parfums Stem seems equally applicable to the issue of authorization. Therefore, defendants cannot rely on an “enterprise” theory to establish authorization. Other aspects of the Original Appalachian opinion, which reviewed several recent grey market cases in this circuit, also reinforce the conclusion that defendants cannot rely on an “implicit authorization” argument. In several instances, the Second Circuit distinguished between those cases involving goods that were intended for sale in the U.S. and those involving goods that were not. Thus, it appears that the intent of the trademark holder with respect to the distribution of the goods is of some importance. Based on a review of the papers submitted for the earlier motion and for the current motions, this Court finds that while a small percentage of the goods sold by defendants have been purchased from authorized Weil retail dealers, most have been purchased by defendants from sources unauthorized by Weil and most were never intended to be sold in the United States. Accordingly, defendants do not have implicit or explicit consent or authorization from the U.S. trademark owner to distribute and sell in the U.S. the vast majority of the goods bearing the Lladro mark that they have been or are distributing and selling in the U.S. At trial, of course, the parties will be free to offer evidence as to the amount of goods that are or were authorized for distribution by plaintiff Weil for the purpose of determining plaintiff's damages. 2. Likelihood of Confusion The “heart of a successful claim” for trademark infringement under section 1114 is a “showing of likelihood of confusion as to the source or sponsorship of a defendant’s products.” Standard & Poor’s Corp. v. Commodity Exchange, Inc., 683 F.2d 704, 708 (2d Cir.1982) (citations omitted); accord Miss Universe, Inc. v. Patricelli, 753 F.2d 235, 237 (2d Cir.1985). As mentioned above, defendants strenuously argue in their motion for summary judgment that their sale and distribution of “genuine first quality” Lladro porcelain cannot cause confusion as to source and that plaintiff therefore cannot prevail in its cause of action pursuant to section 1114. As a preliminary matter, this Court notes that defendants’ assertion that the sale of “genuine” Lladro products precludes any possibility of confusion as to source of origin and therefore bars an action for infringement misperceives an important element of trademark law. The concept of likelihood of confusion is not limited solely to confusion as to source of origin but rather encompasses any kind of likelihood of confusion. See Syntex Laboratories, Inc. v. Norwich Pharmacal Co., 437 F.2d 566, 568 (2d Cir.1971); accord Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204-05 (2d Cir.1979). Of particular relevance in the context of grey market goods is the concept of likelihood of confusion as to “sponsorship” —that is, confusion as to the identity of the company that stands behind or insures the quality of the trademarked goods. See Weil Ceramics, 618 F.Supp at 705 (citing Bell & Howell: Mamiya Co. v. Masel Supply Co., 548 F.Supp. 1063, 1071 (E.D.N.Y.1982), preliminary injunction vacated on other grounds, 719 F.2d 42 (2d Cir.1983)); see generally Original Appalachian, 816 F.2d at 74-76 (Cardamone, J., concurring) (distinguishing between trade identity theory and guarantee function of trademark law). Accordingly, even if there were no possibility of confusion as to source of origin when a product is “genuine,” there might still be confusion as to sponsorship when a “genuine” product is manufactured by a foreign manufacturer but distributed in the U.S. without the authorization of and in competition with the U.S. trademark owner. See, e.g., Weil Ceramics, 618 F.Supp. at 704-06 (concluding that genuine goods may cause confusion); but see NEC Electronics v. CAL Circuit Abco, 810 F.2d 1506, 1509-10 (9th Cir.1987) (unauthorized sale of “genuine” goods cannot cause confusion when U.S. trademark holder and foreign manufacturer are related). As to the merits of defendants’ motion, two recent decisions by the Second Circuit persuade this court that the motion must be denied. In El Greco Leather Products Co. v. Shoe World, Inc., 806 F.2d 392 (2d Cir.1986), cert. denied, — U.S. -, 108 S.Ct. 71, 98 L.Ed.2d 34 (1987), the court considered the issue of whether goods manufactured by a foreign company under an agreement with the U.S. trademark holder but distributed in the U.S. without the authorization of the U.S. trademark holder can be considered “genuine” for purposes of the Lanham Act. In holding that such goods are not genuine, the court relied on the notion that “[o]ne of the most valuable and important protections afforded by the Lanham Act is the right to control the quality of the goods manufactured and sold under the holder’s trademark." Id. at 395 (citation omitted). In particular, the court noted that “the actual quality of the goods is irrelevant; it is the control of quality that a trademark holder is entitled to maintain.” Id. (emphasis added) (citation omitted). In El Greco, the plaintiff trademark holder had specified in its agreement with the defendant manufacturer that merchandise could not be distributed in the U.S. until the plaintiff had inspected it to ensure quality. Id. Because the inspection was an integral part of the plaintiffs quality control effort and because the goods were distributed without inspection, the court determined that the goods were not genuine and that the defendant’s acts were therefore violative of section 1114. In so holding, the court specifically noted that “[t]he mere act of ordering a product to be labeled with a trademark does not deprive its holder of the right to control the product and the trademark.” Id. at 395-96. The court declined to decide whether the unauthorized sale of “genuine” goods could give rise to a likelihood of confusion. Id. at 395. In Original Appalachian, supra, the court considered the issue of whether the unauthorized distribution in the U.S. of goods that are manufactured abroad under a license from the U.S. trademark owner restricting the territory in which the foreign goods may be distributed can infringe on the trademark holder’s rights. In holding that the U.S. trademark holder’s rights had been violated even though the defendant importer’s goods bore a “genuine” trademark portraying the U.S. trademark holder as the originator, the Second Circuit emphasized two factors: first, the foreign goods at issue were materially different from the U.S. goods and were therefore not “genuine” even though their manufacture and distribution abroad had been “authorized” by the U.S. trademark holder; second, the foreign goods had never been intended for distribution in the U.S. In light of these two decisions and based upon a review of the papers submitted by the parties, it is clear that defendants’ motion must be denied for two reasons: first as discussed above, the goods at issue were never intended for sale in the U.S. and second, there is an unresolved question of fact as to whether the goods distributed by defendants are identical to the goods distributed by plaintiff. For purposes of this motion, plaintiff has not alleged that the goods are counterfeit. Plaintiff has submitted sufficient support for its allegations to raise a fact question and thus to preclude an award of summary judgment for defendants. Plaintiffs cross-motion for summary judgment on this issue, in contrast to defendants’, raises issues that are not as easily resolved. Plaintiff argues, in effect, that even if the goods originate from a common source and even if the goods are identical rather than merely confusingly similar, defendants’ unauthorized distribution in the U.S. nevertheless infringes plaintiff’s exclusive rights as the U.S. trademark holder. El Greco and Original Appalachian do not directly address this issue in the factual context of this case which, among other things, involves a corporate relationship between the foreign manufacturer, Lladro, S.A., and the U.S. trademark holder, Weil. In both El Greco and Original Appalachian, the goods were not deemed to be “genuine” and the U.S. trademark holder and the foreign manufacturer were separate corporate entities. In light of Original Appalachian, however, plaintiff’s cross-motion for summary judgment must be denied because there is an unresolved threshold fact question as to whether defendants’ goods are identical to plaintiff’s. Furthermore, the Court believes that in light of El Greco, Original Appalachian, and other recent gray market decisions, the parties should have an opportunity to address these issues again if renewed motions for summary judgment are deemed desirable. D. UNAUTHORIZED IMPORTATION CLAIM In the third count of its complaint, plaintiff Weil asserts a claim pursuant to section 42 of the Lanham Act of 1946, 15 U.S.C. § 1124, and section 526 of the Tariff Act of 1930, 19 U.S.C. § 1526. Defendants, in their motion for summary judgment, argue that these two statutes are inapplicable to their activities because they are not importers. Defendants also argue that in light of the long-standing interpretation of these statutes by the Customs Service and by the court in Parfums Stem, supra, with respect to nonexclusion of goods when the U.S. trademark holder is affiliated with the foreign manufacturer of the goods, these statutes should not be applicable even if defendant Karen-Leslie were an importer. Defendants’ Memorandum at 18-20. In opposition to defendants’ motion and in support of its cross-motion, plaintiff Weil explicitly addresses defendants’ first argument only in two brief statements: (1) “[t]he defendants are liable as importers because they have both contributed to and induced the importation of unauthorized imports,” Plaintiffs’ Opposition at 73, and (2) “the fact that defendants do not themselves import the infringing copies does not insulate them from infringing Weil’s U.S. trademark rights,” id. at 2. The only other reference to this issue appears in the complaint in which plaintiff alleges that defendants “have imported, caused to be imported, or conspired with the importers of” the merchandise at issue. Complaint ¶¶ 52, 54. With respect to defendants’ second argument that plaintiff has no legally recognizable rights to exclude others from importing “genuine” goods, plaintiff argues that these two statutes do prevent the unauthorized importation of goods made by a foreign manufacturer bearing a genuine foreign trademark that is identical to the U.S. trademark. In support of its contention, plaintiff argues that by providing exceptions to the exclusion of “genuine” goods in two other statutory provisions, 48 U.S.C. § 1643 (the Virgin Islands Exception) and 19 U.S.C. § 1526(d)(1) (the personal use exception), Congress must have intended sections 1124 and 1526 to provide a means in all other situations for U.S. trademark holders to exclude the unauthorized importation of “genuine” goods. Plaintiff also cites several cases in support of its arguments that “genuine” goods may be excluded. 1. Section 1124 Section 42 of the Lanham Act, 15 U.S.C. § 1124, provides in relevant part that “no article of imported merchandise ... which shall copy or simulate a trademark registered in accordance with the provisions of this chapter ... shall be admitted to entry at any customhouse of the United States.” The Second Circuit has taken a very narrow view of the protection afforded private litigants under this statute. In Olympus Corp. v. United States, 792 F.2d 315, 321-22 (2d Cir.1986), petition for cert. filed, 55 U.S.L.W. 3392 (Nov. 6, 1986), the court determined that “[t]he plain language of the statute does not bar importation if the goods are genuine, only if they ‘copy or simulate’ a trademark.” Id. at 321. Thus, “[a]bsent the Katzel situation,” which involved a U.S. trademark holder that was completely independent from the foreign manufacturer, “section 1124 applies only to merchandise bearing counterfeit or spurious trademarks that ‘copy or simulate’ genuine trademarks.” Id. Plaintiff has not alleged that the goods distributed by defendants bear a counterfeit or spurious trademark. While plaintiff could conceivably raise the argument under the reasoning of El Greco and Original Appalachian, see discussion supra, that the trademark on the goods distributed by defendants is not “genuine” because the goods may not be identical, this argument seems to be foreclosed by Olympus. Read literally, Olympus precludes a claim under section 1124 unless the goods bear a counterfeit mark. Accord Lever Brothers v. United States, 652 F.Supp. 403, 406-07 (D.D.C.1987); American Honda Motor Co., Inc. v. Carolina Autosports Leasing and Sales, Inc., 645 F.Supp. 863 (W.D.N.C.1986). Accordingly, defendants’ motion for summary judgment is granted and plaintiff’s cross-motion is denied. 2. Section 1526 Section 526(a) of the Tariff Act, 19 U.S.C. § 1526(a), prohibits the importation of merchandise bearing a registered trademark owned by a U.S. trademark holder unless the U.S. trademark holder has consented in writing. In ruling on the current motions, it is unnecessary to discuss the validity of the regulations promulgated by the U.S. Customs Service under this statute and under section 42 of the Lanham Act with respect to imports of “genuine” goods when the foreign manufacturer and domestic U.S. trademark holder are related entities, an issue that has divided the courts, compare Olympus Corp., 792 F.2d at 319-21 (upholding validity of regulations) and Vivitar Corp. v. United States, 761 F.2d 1552, 1568-71 (Fed.Cir.1985) (same), cert. denied, 474 U.S. 1055, 106 S.Ct. 791, 88 L.Ed.2d 769 (1986) with Coalition to Preserve the Integrity of American Trademarks v. United States, 790 F.2d 903, 905 (D.C.Cir.1986) (finding regulations invalid), cert. granted sub nom. K Mart Corp. v. Cartier, Inc., — U.S. -, 107 S.Ct. 642, 93 L.Ed.2d 699 (1986), because the statute provides a judicial remedy distinct from the administrative enforcement mechanism. Defendants’ motion for summary judgment must be denied for two reasons. First, defendants’ reading of the statute is far too narrow; liability is not limited to importers only. While subsection (a) bars importation and might be construed to apply only to importers, subsection (c) specifically provides a remedy against “[a]ny person dealing in any such merchandise.” 19 U.S.C. § 1526(c) (emphasis added). A distributor clearly “deals” in merchandise and thus may be liable under the statute. Second, while the Customs Service has determined that it will not exclude merchandise bearing a “genuine” mark when the foreign manufacturer and U.S. trademark holder are related entities, see 19 C.F.R. § 133.21(c)(2), and these regulations have been upheld by the Second Circuit, see Olympus, 792 F.2d at 319-21, the Second Circuit has nevertheless found that “Customs’ interpretation of the statute does not limit the reach of protection of section 526” of the Tariff Act, id. at 320. Specifically, the Second Circuit has determined that notwithstanding the interpretation used by Customs, a U.S. trademark holder may still pursue private remedies under section 1526(e). See id.; accord Original Appalachian, 816 F.2d at 71; Vivitar, 761 F.2d at 1569; Dial Corp. v. Encina Corp., 643 F.Supp. 951, 955-56 (S.D.Fla.1986). Therefore, defendants may be liable notwithstanding the exception provided by the regulations. Plaintiff’s cross-motion must also be denied. A threshold requirement for protection under section 526(a) is that a copy of the certificate of registration of the trademark be filed and recorded with the Department of the Treasury. See 19 U.S.C. § 1526(a); see also 15 U.S.C. § 1124; 19 C.F.R. § 133.2. Plaintiff alleges that it has complied with the filing requirements of 19 U.S.C. § 1526(a), see Complaint ¶ 51, but defendants deny this allegation, see Answer and Counterclaim II51. The Court has searched in vain through the many documents on file in this action for any evidence of plaintiff’s compliance. While the search has revealed an admission by counterdefendants in this action that the registration of the trademark was recorded with the U.S. Customs Service as number 84-72, dated April 20, 1984, see Reply to Counterclaim ¶ 15, it has not revealed any document showing this recordation. Because there is a genuine issue of material fact as to plaintiff’s compliance with this statutory requirement, plaintiff’s cross-motion for summary judgment must be denied. VI. ANTITRUST ISSUES In its counterclaim, counterplaintiff Karen-Leslie Co., Inc. (“Karen-Leslie”) asserts that counterdefendants DAISA, Weil, and Lladro, S.A. have violated sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2. Karen-Leslie asserts that counterdefendants have conspired among themselves and with their authorized retailers in the U.S. and with others to restrain trade, monopolize, and attempt to monopolize the sale and distribution of Lladro figurines in the U.S. Karen-Leslie alleges that counterdefendants have committed the following acts with the specific intent of furthering their illegal conspiracy: falsely marked Lladro figurines with copyright notice when these figurines are uncopyrightable, misused valid copyrights and overwhelming economic power by bringing infringement actions in an attempt to prevent the importation and sale of these figurines by defendants and others; acted with their retailers to boycott Karen-Leslie; and attempted to use the Lladro trademark registration to block the importation of Lladro by anyone other than Weil. Karen-Leslie alleges that the effect of these acts has been a reduction in competition in the sale and distribution of the figurines and an artificially raised and maintained resale price. Early in 1984, counterdefendants moved to dismiss the counterclaims. The motion was denied at oral argument on April 6, 1984. See Order dated May 7,1984. Counterdefendants have now moved for summary judgment. For the reasons set forth below, counterdefendants’ motion is granted in part and denied in part. A. THE RELEVANT MARKET The parties hotly contest the appropriate definition of the relevant market. This dispute is critical because a determination with respect to the relevant market is an essential prerequisite to analyzing most of the claims raised by Karen-Leslie under both sections 1 and 2 of the Sherman Act. The parties have agreed that the relevant geographic market is the United States. See Counterclaim ¶7; Counterdefendants’ 3(g) Statement ¶ 13. There is no agreement, however, with respect to the relevant product market. Counterdefendants assert that the relevant product market consists of retail giftware, see id., whereas Karen-Leslie asserts that the relevant market consists of Lladro porcelain figurines, see Counterplaintiff’s 3(g) Statement ¶ 5, or Lladro and Hummel porcelain figurines, see id. ¶ 6, or possibly all figurines, see Counterplaintiff’s Memorandum in Opposition to Counterdefendants’ Motion for Summary Judgment on the Antitrust Counterclaim at 35. The parties have not sufficiently clarified whether they are referring to the retail or wholesale market. The classic test for defining the product market was enunciated by the Supreme Court in United States v. E.I. duPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). The Court stated that the “market is composed of products that have reasonable interchangeability for the purpose for which they are produced — price, use and qualities considered.” Id. at 404, 76 S.Ct. at 1012 (emphasis added). The Court also emphasized the importance of the purchaser’s willingness to substitute one commodity for another, id. at 393, 76 S.Ct. at 1006, or what is referred to as “cross-elasticity of demand,” see generally Hayden Publishing Co. v. Cox Broadcasting Corp., 730 F.2d 64, 70-71 (2d Cir.1984); 2 P. Areeda & D. Turner, Antitrust Law § 519a (1978); 3 J. Von Kalinowski, Antitrust Laws and Trade Regulation § 8.02[2][a] (1986). Relying upon these factors, this Court finds that neither party has conclusively defined the relevant product market. Counterdefendants’ assertion that the relevant market is giftware is overly broad. As Karen-Leslie points out, that definition might include such products as mugs, lighters, adult games, and myriad other products that do not appear to be reasonable substitutes for Lladro porcelain, which is high-priced in comparison and is alleged to be a “collectible.” On the other hand, Karen-Leslie’s definitions of the market — (1) Lladro porcelain or (2) Lladro and Hummel porcelain or (3) all figurines — appear too narrow and are contradicted by the deposition testimony found in counterdefendants’ Reply Memorandum, which indicate that there are at least several types of figurines, including porcelain, crystal and other materials, and possibly several types of giftware, such as nonfigurine crystal and china, that compete in the same market as Lladro porcelain figurines. Based upon these submissions, the Court is unable to determine what the relevant market is and must instead conclude that there is an unresolved issue of fact. Nevertheless, there are some determinations that can be made from the record. As a preliminary matter, the Court notes that the dispute between the parties rests, in part, on whether one brand can constitute a relevant market. While such a conclusion might be possible, based on a finding of uniqueness and a finding that there is no substitute that consumers will accept, Karen-Leslie has cited no authority in which such a conclusion has been reached. In duPont, supra, the Supreme Court emphasized the distinction between a manufacturer’s natural monopoly over its own product and its ability to wield monopoly power in the relevant market. The Court stated that: Thus one can theorize that we have monopolistic competition in every nonstandardized commodity with each manufacturer having power over the price and production of his own product. However, this power that, let us say, automobile or softdrink manufacturers have over their trademarked products is not the power that makes an illegal monopoly. Illegal power must be appraised in terms of the competitive market for the product. 351 U.S. at 393, 76 S.Ct. at 1006 (emphasis added) (footnotes omitted). Since duPont, numerous courts have determined that, absent special circumstances, a particular brand either did not or could not constitute the relevant market in section 2 cases, see, e.g., Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480, 488-89 (5th Cir.1984) (in absence of recognized exceptions, one brand in market place of competing brands cannot be deemed relevant product market for purposes of section 2 of Sherman Act); Proctor v. General Conference of Seventh-Day Adventists, 651 F.Supp. 1505, 1525 (N.D.Ill.1986) (“Seventh-Day Adventist literature is not a relevant market or submarket; it is a product.”); cf. Island Tobacco Co. v. R.J. Reynolds Industries, Inc., 513 F.Supp. 726, 744 (D.Hawaii 1981) (“Every manufacturer has a natural monopoly in the sale and distribution of his own product, especially when the product is sold under a trademark.”) (citations omitted); Speed Auto Sales, Inc. v. American Motors Corp., 477 F.Supp. 1193, 1197 (E.D.N.Y.1979) (“[e]very manufacturer has a natural and complete monopoly over his particular product, especially when sold under his own private brand or trade name”) (quoting Schwing Motor Co. v. Hudson Sales Corp., 138 F.Supp. 899, 902 (D.Md.), aff'd, 239 F.2d 176 (4th Cir.1956), cert. denied, 355 U.S. 823, 78 S.Ct. 30, 2 L.Ed.2d 38 (1957)); and in section 1 cases, see, e.g., Muenster Butane, Inc. v. Stewart Co., 651 F.2d 292, 295-96 (5th Cir. Unit A 1981) (plaintiffs “fundamental mistake throughout this case has been to view the product market as confined to Zenith sets” as opposed to all available brands of television sets when record contained no evidence that “Zeniths are unique or that Zenith dealers enjoy a downward sloping demand curve for their sets”). The deposition testimony taken from witnesses named by Karen-Leslie not only reveals no support for finding that Lladro figurines should be deemed to constitute the relevant product market, see Counter-defendants’ Reply to Counterplaintiff’s Memorandum in Opposition to Counterdefendants’ Motion for Summary Judgment on the Antitrust Counterclaims, Exhibits F, J, K, L, M, N, O, P, & Q, but rather supports just the opposite conclusion. Karen-Leslie has made no showing that Lladro falls within the exceptions to single-brand definitions recognized by some courts. See, e.g., Domed Stadium, 732 F.2d at 488-89 & n. 9 (discussing exceptions). Therefore, it is clear that the relevant market does not consist of Lladro by itself. With respect to Karen-Leslie’s second market definition — Lladro and Hummel porcelain — the Court finds that while there is some support in the record for this definition, it is not conclusive nor even persuasive. However, assuming for the moment that this definition is appropriate, counterdefendants have submitted information showing that Weil’s sales of Lladro, translated into a retail sales figure, for the calendar year of 1984 were approximately $40 million, see Counterdefendants’ Memorandum, Exhibit L, ¶ 9, while retail sales of Hummel were estimated to be between $140 and $180 million, see Counterdefendants’ Reply, Exhibit R, 11 2. There is no indication of the year that Hummel estimates cover. Karen-Leslie has not disputed these figures and the Court is tempted to accept them as the appropriate definition, particularly as Karen-Leslie’s third alternative— all figurines — would leave Weil with an even smaller share of the market and thus could not provide support for Karen-Leslie’s antitrust claims. See, e.g., Counterdefendants’ Memorandum, Exhibit L, 117 (providing annual sales figures for several other brands of figurines). However, the sales figures before the Court do not relate to the time period at issue, see discussion infra, and the Court thus is unable to determine what the structure of the market was during the relevant time period of 1978-81. The parties are advised that with respect to any renewed motion for summary judgment, the issue of market definition is critical. Karen-Leslie, of course, has the ultimate burden of establishing the definition of the relevant market in its section 2 claims, see, e.g., Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 840 (2d Cir.1980); accord C.E.D. Mobilephone Communications, Inc. v. Harris Corp., 1985-1 Trade Cas. (CCH) ¶66,-386, at 64,897 (S.D.N.Y. Jan. 14, 1985), [Available on WESTLAW, 1985 WL 193], and in its section 1 claims, see, e.g., Hayden Publishing, 730 F.2d at 69-70 (“Among the most important circumstances to be considered [under the ‘rule of reason’] are those relating to the competitive characteristics of the relevant market.”); accord Topps Chewing Gum, Inc. v. Major League Baseball Players Ass’n, 641 F.Supp. 1179, 1189 (S.D.N.Y.1986), unless its showing falls within the standard enunciated in FTC v. Indiana Federation of Dentists, 476 U.S. 447, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986); see note 35 infra. On counterdefendants’ motion for summary judgment, however, the burden is on counterdefendants to show that there is no disputed issue of fact. Hayden Publishing, 730 F.2d at 70. Accordingly, Karen-Leslie’s failure to define the market adequately or to demonstrate the anticompetitive effects upon that market of counterdefendants’ alleged illegal conduct is not fatal on this motion. Id. B. SECTION 1 CLAIMS Karen-Leslie asserts that counterdefendants have violated section 1 of the Sherman Act by conspiring to restrain trade. Karen-Leslie has not separated its section 1 and section 2 claims, but a liberal construction of the complaint reveals that, in essence, Karen-Leslie is asserting that counterdefendants engaged in a retail price maintenance scheme and that as part of this scheme, Karen-Leslie was subjected to a group boycott or illegal refusal to deal. Karen-Leslie asserts that this scheme involved both a horizontal and vertical restraint of trade. Section 1 of the Sherman Act proscribes “[ejvery contract, combination ... or conspiracy, in restraint of trade or commerce.” 15 U.S.C. § 1. Because all commercial contracts, by their very nature, restrain trade to some extent, the broad prohibition of section 1 has been construed to apply to only those agreements that unreasonably restrain trade. See, e.g., Chicago Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). Thus, to sustain a claim under section 1, Karen-Leslie must establish (1) that counterdefendants entered into a contract, combination, or conspiracy, and (2) that the conspiracy effected an unreasonable restraint on trade. 15 U.S.C. § 1; Standard Oil Co. v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911); International Distribution Centers, Inc. v. Walsh Trucking Co., 812 F.2d 786, 793 (2d Cir.1987). Furthermore, to pursue a private claim for damages under section 4 of the Clayton Act, 15 U.S.C. § 15, and for injunctive relief under section 16 of the Clayton Act, 15 U.S.C. § 26, Karen-Leslie must show that it has suffered or is threatened with suffering antitrust injury and that it has standing under each statute to bring this action. See, e.g., Cargill, Inc. v. Mon-fort of Colorado, Inc., — U.S. -, 107 S.Ct. 484, 489-91, 93 L.Ed.2d 427 (1986). Counterdefendants assert that Karen-Leslie has failed to meet its burden with respect to all three elements necessary to sustain its section 1 claim — that is, (1) that there was concerted activity (2) that unreasonably restrained trade (3) and caused antitrust injury to Karen-Leslie. Counterdefendants also assert that Karen-Leslie lacks standing to bring its claim. Because the injury and standing issues are dispositive as to some of the claims asserted by Karen-Les