Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW HITTNER, District Judge. Plaintiffs Pebble Beach Company (“Pebble Beach”), Resorts of Pinehurst, Inc. (“Resorts”), and Sea Pines Company, Inc. (“Sea Pines”), brought suit against Tour 18 I, Ltd. (“Tour 18”), which operates a public golf course in Humble, Texas named “Tour 18.” Plaintiffs allege that Tour 18’s replication of their golf hole designs and use of their service marks in advertisements, promotional materials, and on its golf course signs, violate various provisions of federal and state law. Plaintiffs filed their complaint asserting causes of action under the Lanham Act, 15 U.S.C. § 1051 et. seq., for service mark and trade dress infringement, unfair competition, and false advertising. Plaintiffs also allege claims under Texas law for common law unfair competition, conversion, civil conspiracy, and service mark and trade dress dilution under the Texas anti-dilution statute, Tex. Bus. & Com.Code Ann. § 16.29. Pebble Beach asserts a claim for copyright infringement. Defendant Tour 18 asserts counterclaims against plaintiffs under Texas common law for unfair competition, interference with existing and prospective business relations, and civil conspiracy. All of Tour 18’s counterclaims arise out of plaintiffs’ actions in prosecuting this lawsuit. Specifically, Tour 18 claims that this lawsuit is frivolous and intended only to put Tour 18 out of business. This ease was tried to the Court beginning on October 31,1995, with final post-trial submissions filed by the parties on January 11, 1996. After reviewing the evidence, the submissions of the parties, and the applicable law, the Court enters the following findings of fact and conclusions of law. BACKGROUND FACTS I. The Parties Pebble Beach is a California general partnership with its principal place of business in Pebble Beach, California. Pebble Beach owns and operates a golf and vacation resort in northern California, which includes five golf courses: (1) Pebble Beach Golf Links; (2) The Links at Spanish Bay; (8) Spyglass Hill; (4) Peter Hay Golf Course; (5) Old Del Monte Golf Course. Resorts is a North Carolina corporation with its principal place of business in Pine-hurst, North Carolina. Resorts owns and operates a golf resort in North Carolina that includes seven golf courses, numbered 1 through 7. Resorts is owned by Club Corporation of America, a company which owns and manages golf courses and clubs nationwide. Sea Pines is a South Carolina corporation with its principal place of business on Hilton Head Island, South Carolina. Sea Pines owns and operates Harbour Town Golf Links as part of its golf and tennis resort on Hilton Head Island. Tour 18 is a Texas limited partnership with its principal place of business in Humble, Texas. The partnership has merged into Tour 18, Inc., a Texas corporation. Tour 18 owns and operates a golf course in Humble, Texas (near Houston) and a golf course in Flower Mound, Texas (near Dallas). Tour 18’s golf courses consist of golf holes that are copies of golf holes from famous golf courses around the United States. For its Humble, Texas course Tour 18 replicated three holes from plaintiffs’ golf courses: Pebble Beach Hole 14, Pinehurst No. 2 Hole 3, and Har-bour Town Hole 18. Additionally, Tour 18 replicated Harbour Town Hole 18 for its Flower Mound, Texas course. II. The Parties’ Facilities and Operations A. Pebble Beach Pebble Beach originated in 1881 when Pebble Beach Company’s predecessor-in-interest, the Pacific Improvement Company, purchased approximately 5,300 acres within the Del Monte Forest near Carmel Bay in California, in an area named “Rancho El Pescadero.” The Pacific Improvement Company named an unincorporated portion of this area “Pebble Beach” in 1909. That area remains unincorporated within what is still referred to by the State of California as “Rancho El Pescadero.” Pebble Beach Company controls access into this area by several security gates and charges a fee for admission. Pebble Beach Company also controls commercial activities within the Del Monte Forest area. One of Pebble Beach’s former principals, Samuel Morse, dedicated a large portion of the Del Monte Forest to a trust to preserve its natural state. In addition, he selected land adjacent to the Pacific Ocean for a golf course, which he named Pebble Beach Golf Links. The golf course opened in 1919 and has since been continuously referred to as “Pebble Beach.” Pebble Beach Golf Links has consistently been named among the top five golf courses in the United States. Furthermore, the evidence establishes that Pebble Beach Golf Links is a famous golf course among golfers nationwide. The fame of the course " is based on a number of factors. First, its location on the shores of the Pacific Ocean give it a natural beauty that may be unsurpassed by any other golf course. Second, Pebble Beach Golf Links has hosted many nationally televised professional golf tournaments. Additionally, many unsolicited articles written in books, magazines, and newspapers, and numerous statements of praise by distinguished golf writers and professional golfers, have added to Pebble Beach’s reputation. To promote its golf course and resort, Pebble Beach Company advertises Pebble Beach nationally, including in Texas. Golfers from Texas, including some from the Houston area, constitute approximately five percent of Pebble Beach’s customers. Furthermore, while Pebble Beach is a public golf resort, the combination of Pebble Beach’s history, beauty, and fame makes Pebble Beach an exclusive luxury golf resort to which people from around the world travel for vacations. Green fees at Pebble Beach Golf Links are approximately $245.00 for golfers not staying overnight at the Lodge at Pebble Beach. For guests of the Lodge, green fees are approximately $195.00. The Lodge at Pebble Beach costs at least $280.00 per night. Tour 18 replicated Pebble Beach Hole 14 for one of its golf holes at its Humble, Texas golf course and uses the phrase PEBBLE BEACH in its advertising, promotional brochures, and on its golf course signs. Pebble Beach Hole 14 is a par five, dog-leg right that is ranked as Pebble Beach’s number one handicap hole, identifying it as the most difficult hole on the course. The 14th Hole is not adjacent to the Pacific Ocean, but it provides golfers with a view of the ocean from the tee box and while walking from the tee box to the green. Its fairway is lined with tall cypress and oak trees. One of the most notable features of Hole 14 is the large sand bunker guarding the left side of the green. In one of its brochures, Tour 18 touts this bunker as “one of the most critical bunkers in golf.” While the evidence shows that Pebble Beach Golf Links is a famous golf course, the evidence is insufficient to demonstrate that the design of the 14th Hole at Pebble Beach is famous among golfers. The 14th Hole is not Pebble Beach’s “signature” hole and it has not been emphasized by Pebble Beach in its advertising and promotional brochures. The evidence also indicates that the 18th and 7th Holes at Pebble Beach are more often photographed and emphasized in golf publications and literature because of their beauty and proximity to the rocky cliffs overlooking the Pacific Ocean. Pebble Beach owns an incontestable federal service mark registration of the phrase PEBBLE BEACH for golfing services, Reg. No. 1,065,027. Pebble Beach does not have a federal trademark registration for the design of Pebble Beach Hole 14. Pebble Beach also does not have a copyright, design patent, or utility patent on the design of Hole 14. B. Pinehurst No. 2 On a parcel of land in an unincorporated area of North Carolina, Resorts’ founder, James Walker Tufts, built four golf courses and a resort hotel that he initially called Tuftstown, and later in 1895, renamed Pine-hurst. Pinehurst remained an unincorporated area until 1980, when it was incorporated as the ‘Willage of Pinehurst.” Resorts now owns six and operates seven golf courses on the land acquired by Mr. Tufts. Tour 18 replicated Pinehurst No. 2 Hole 3 for its Humble, Texas course, and uses the phrase PINEHURST in its advertising, promotional brochures, and on its golf course signs. Donald Ross was the architect of the Pine-hurst No. 2 course. Many golfers and golf historians consider Ross one of the greatest golf- course architects. (PX 426, 410). He designed over 600 golf courses in the United States, including several courses ranked in the top 100 in the United States by Golf Digest and other trade publications. (PX 426). According to the evidence, Pinehurst No. 2 is considered Ross’ masterpiece and is therefore the most famous of the seven courses at the Pinehurst resort. Ross designed the first nine holes for Pinehurst No. 2 in 1903, and the second nine holes in 1907. In 1923 and in 1935 he added holes 3 through 6 to the front 9 to create Pinehurst No. 2 as it exists today. The resulting course is frequently referred to simply as “Pinehurst.” The evidence indicates that Pinehurst No. 2 is famous among golfers, and like Pebble Beach, Pinehurst became famous in part because major professional tournaments have been held there. Pinehurst No. 2 was recently selected as the site for the 1999 U.S. Open Championship. Additionally, Pinehurst No. 2 has been ranked consistently among the top golf courses by golf publications; for many years it has been ranked second by Golf Digest, behind Pebble Beach, among the best public golf courses in the United States. The notoriety of Pinehurst coupled with Pinehurst’s own national marketing and advertising efforts throughout the United States bring golfers from all over the United States to play the Pinehurst' golf courses. Pinehurst spends thousands of dollars each year to advertise itself in national golf and travel magazines and in advertisements focused on Texas. Approximately five to six percent of Resorts’ business comes from Texas. Like Pebble Beach, Resorts is an exclusive golf destination resort and its prices reflect its exclusivity. Green fees and a golf cart for a round of golf on Pinehurst No. 2 are approximately $145.00. Tour 18 included in its Humble, Texas course a replica of Pinehurst No. 2 Hole 3. Hole 3 is a par four that emphasizes the elements and attributes of the Donald Ross design. Specifically, Hole 3 has a natural area of sand interspersed with clumps of wire grass, which is indigenous to the local area, that extends between 200 and 300 yards along the right side of the fairway. Adjacent to the natural area is a sand cart path. As stated above, Pinehurst and its No. 2 golf course are famous among golfers. In contrast, the evidence at trial was insufficient to show that the individual hole copied by Tour 18-Pinehurst No. 2 Hole 3-is famous among golfers. Pinehurst No. 2 Hole 3 is not the course’s signature hole. Additionally, Resorts does not emphasize Pinehurst No. 2 Hole 3 in advertisements or other promotional materials. Resorts owns the federal service mark PI-NEHURST for golf course services, Reg. No. 1,601,470. However the service mark is not incontestable. Resorts does not own a federal trademark registration for the design of Pinehurst No. 2 Hole 3. Resorts does not have a copyright, design patent or utility patent on Pinehurst No. 2 Hole 3. C. Harbour Town Golf Links Sea Pines Company and the Sea Pines resort area in South Carolina were established in 1956 when Charles Fraser purchased and began to develop the southern end of Hilton Head Island. At the time, Hilton Head Island had an abundance of wildlife and a few inhabitants, but no hotels, no telephone, no electricity, no medical facilities, no modem stores, and only one paved road. Sea Pines began constructing the first resort facilities in 1957, and went on to build Sea Pines Plantation, the first golf course, tennis club, and planned community on the island. In 1965, Fraser began planning for the development of a small resort community within Sea Pines, which he named Harbour Town. In 1968 Sea Pines Company began construction of a lighthouse, the Harbour Town Golf Links, a racquet club, condominiums, and other resort facilities. Harbour Town was established within a section of Sea Pines with particularly spectacular views of an area of the Atlantic Ocean named the Calibogue Sound. Fraser built a residential community patterned after European fishing villages, including the Harbour Town lighthouse, shops, and restaurants adjacent to a small marina. Fraser commissioned Pete Dye and Jack Nicklaus to build a world-class golf course across the small harbor from the lighthouse. The golf course was hurriedly completed in 1969 since earlier in the year Fraser had secured for the course a PGA Tour tournament named the Heritage Classic. The lighthouse, which Sea Pines Company then owned along with the rest of the Harbour Town development, was completed shortly thereafter in 1970. Tour 18 replicated the 18th Hole at Har-bour Town for both its Humble, Texas and Flower Mound, Texas golf courses. On both of these replica holes, Tour 18 constructed replica lighthouses. The genuine Harbour Town lighthouse is octagonal in shape with red and white striping. While the lighthouse is visible from the tee box and fairway of the 18th Hole, it is not physically on the golf course. The lighthouse is actually situated 100 feet from the 18th green across a small inlet of water leading to the Harbour Town marina. Fraser testified that the lighthouse was placed in this position so that television cameras broadcasting professional tournaments would show the lighthouse at the end of the 18th Hole. Fraser stated “You could not televise golf without simultaneously televising the lighthouse. That was a deliberate location of that trademark.” Tr. at 1230. Additionally, there was testimony at trial that because of the location of the lighthouse, many golfers use it as a target to line up their tee shots. However, according to Fraser, his placement of the lighthouse in relation to the 18th hole was not to create a target for golfers, but to guarantee exposure for the lighthouse on television during professional tournaments. Each year Sea Pines attracts thousands of vacationers and hosts major professional golf and tennis tournaments. Sea Pines operates several championship golf courses in the Sea Pines resort area. However, it is Harbour Town Golf Links that is the most famous and critically acclaimed of the golf courses. Like Pebble Beach and Pinehurst, the evidence shows that Harbour Town Golf Links is consistently ranked as one of the best golf courses in the United States by golf publications. Golf Digest ranked Harbour Town Golf Links among the top twenty golf courses. (PX 500). Furthermore, much of the fame and reputation of Harbour Town Golf Links among golfers results from the course’s association with the lighthouse. As Fraser had intended, the distinctive appearance and towering presence of the lighthouse, televised during tournaments and pictured in golf publications every year, has come to symbolize the Harbour Town golf course. As one witness at trial stated, Har-bour Town Golf Links “is famous on its own design merits, but the lighthouse is the visual symbol in everybody’s mind when they think of Harbour Town.” (PX 515). Not only is the overall Harbour Town golf course famous, but the course boasts one of the most famous holes in golf, the scenic 18th ■ Hole. While the 18th Hole is memorable for its picturesque .waterside vistas, its fame is due in large part to the presence of the lighthouse as the hole’s backdrop. Because of the public’s association of the 18th Hole with the lighthouse, the hole is often referred to as the “Lighthouse Hole.” Indeed Tour 18 uses this nickname in its advertisements and on its golf course signs to refer to its replica of Harbour Town Hole 18. Furthermore, while Pebble Beach and Pinehurst have not used their 14th and 3rd holes, respectively, in advertisements for their courses, the evidence shows that the 18th Hole is the signature hole for Harbour Town Golf Links and Sea Pines frequently places depictions of the 18th Hole and lighthouse in its advertisements and promotional brochures. Sea Pines spends several hundred thousand dollars annually to advertise the Harbour Town Golf Links. Favorable publicity combined with Sea Pines’ promotional efforts has resulted in golfers from all over the country, including Texas, traveling to play Harbour Town. Green fees at Harbour Town Golf Links are $164.00. Since at least 1969, Sea Pines has featured the lighthouse in various corporate logos and has placed these logos on a wide array of promotional materials, advertisements, and soft goods including clothing, novelty items, and sporting goods. However, the evidence also shows that Sea Pines used the “Compass Rose” as a service mark at various times prior to 1991. In 1991, Sea Pines adopted the lighthouse as its corporate logo and service mark. Furthermore, in 1991 and 1992 Sea Pines obtained several trademark and service mark registrations for its lighthouse logo for soft goods, real estate services, and resort hotel services. While prior to 1991 Sea Pines used, the Compass Rose as a mark for the entire Sea Pines community, a logo of the lighthouse, even before 1991, was consistently used as the mark for Harbour Town Golf Links in brochures and various advertisements. While Sea Pines Company constructed and originally owned the lighthouse, Sea Pines’ predecessors sold the physical structure to another company in 1984 which then sold it to Prudential Bache-Fogelman Properties (“Fogelman”). However, Sea Pines retains various federal trademark registrations of the lighthouse for soft goods such as t-shirts and other souvenirs.. Furthermore, Sea Pines entered into a licensing agreement with Fogelman to allow use of depictions of the lighthouse by Fogelman. (PX 615). Sea Pines does not own a federal registration for the service mark HARBOUR TOWN. The design of the lighthouse is not protected by any copyright, design patent, or utility patent. Furthermore, Sea Pines does not own a federal service mark registration for the lighthouse for golfing services. The design of Harbour Town Hole 18 is not protected by any copyright, design patent, or utility patent; nor does Sea Pines own a federal trademark registration for the design of Harbour Town Hole 18. D. Tour 18 Three men, Dennis Wilkerson, Barron Ja-cobsen, and Jim Williams, decided to build a public golf course on land owned by Wilkerson’s father located in Humble, Texas, northwest of Houston. They knew that in order for their course to be successful, it would need well-designed golf holes. Therefore, the men considered hiring a famous golf course architect to design their course. However, after preliminary investigation, the men determined that hiring a prominent golf course architect would be costly and yet might not guarantee the success of their venture. Therefore, the men decided to replicate golf holes from famous golf courses in the United States and to name their course “Tour 18.” In order to select holes to be replicated for their golf course, the men traveled to a number of courses around the United States, researched golf courses in books, and consulted engineers and architects. The men selected holes for their course based on several criteria including the fame of the course, the fame of the hole itself, and their ability to replicate the hole taking into consideration the geography, topography, and natural vegetation of their land in Humble. After considering hundreds of golf holes, the men selected 18 holes to copy for Tour 18, three of which they copied from plaintiffs’ golf courses: Pebble Beach Hole 14, Harbour Town Hole 18, and Pinehurst No. 2, Hole 3. The Tour 18 course in Humble, Texas contains replicas of the following golf holes: Tour 18 Hole Original Hole and Location 1 Harbour Town # 18 (Hilton Head Island, S.C.) 2 Bay Hill # 6 (Orlando, Fla.) 3 Pinehurst No. 2, Hole 3 (Pinehurst, N.C.) 4 Inverness # 18 (Toledo, Ohio) 5 Augusta National #11 (Augusta, Ga.) 6 Augusta National # 12 (Augusta, Ga.) 7 Augusta National # 13 (Augusta, Ga.) 8 LaCosta # 4 (Carlsbad, Ca.) 9 Sawgrass # 17 (Ponte Vedra, Fla.) 10 Desert Inn # 10 (Las Vegas, Nev.) 11 Disney # 6 (Orlando, Fla.) 12 Colonial # 3 (Ft. Worth, Tex.) 13 Pebble Beach # 14 (Pebble Beach, Ca.) 14 Oakmont # 3 (Oakmont, Penn.) 15 Shinnecock Hüls # 8 (Long Island, N.Y.) 16 Merion #11 (Philadelphia, Pa.) 17 Oak Tree # 8 (Edmund, Okla.) 18 Doral # 18 (Miami, Fla.) Tour 18’s course in Flower Mound, Texas, outside of Dallas, also contains as its 7th hole a replica of Harbour Town Hole 18, including a replica of the Harbour Town lighthouse. The evidence indicates that the designs of some of the holes selected and copied by Tour 18 are famous among golfers to such a degree that golfers refer to the holes by well-known nicknames including the “Lighthouse Hole,” the “Island Hole,” “Church Pews,” “Amen Corner,” and “Blue Monster.” However, other holes copied by Tour 18, including Pebble Beach Hole 14 and Pinehurst No. 2 Hole 3, are not famous on their own right, but come from famous golf courses. III. Budding Tour 18 In order to carry out their plan to replicate golf holes, Tour 18’s owners required detailed information on the designs of the original holes. Thus, in 1990 and early 1991, Wilkerson and Jacobsen traveled to several golf courses to videotape the golf holes they had selected to copy. Wilkerson and Jacob-sen went to Pebble Beach in February 1991 and, without Pebble Beach’s knowledge or permission, videotaped the 14th hole for the purpose of replicating the hole. Tour 18’s golf course designer, David Edsall traveled to Harbour Town and videotaped the 18th hole without permission from Sea Pines. Ja-cobsen traveled to Pinehurst and videotaped the third hole of Pinehurst No. 2 without obtaining permission from Resorts. After videotaping holes in 1991, Jacobsen and Wilkerson met an engineer, Robert Rauch, who told Wilkerson and Jacobsen that his design firm “RDC” could create computer generated three dimensional golf hole designs from their videotapes and from topographic maps. Thus, Jacobsen and Wilkerson approached Ed Connor, an engineer who owned a company named “Gol-forms.” Connor had recently worked for Pebble Beach and Pinehurst creating computer generated topographic maps of the Pebble Beach greens and the Pinehurst No. 2 golf holes (the “Connor maps”). Connor also had in his possession a topographic map of the entire Pebble Beach Hole 14 that had been created by an outside engineering firm hired by Pebble Beach (the “Bestor” máp). Tour 18 purchased the maps, as well as maps created by Connor for Augusta National, from Connor for approximately $4,000. Wilkerson then sent the maps to RDC in Maryland where the maps and videotapes were used to generate computer blueprints for the replica golf holes. Tour 18 then used the computer blueprints to construct its replica golf holes in Humble. Additionally, Tour 18 constructed a small replica of the Harbour Town lighthouse which is positioned at the end of its replicas of Harbour Town Hole 18 in Humble and Flower Mound. Tour 18’s replica lighthouses are made of tin and aluminum and do not have a functioning light. IV. Marketing Tour 18 In order to market their course, Tour 18’s owners adopted the marketing slogan “America’s Greatest 18 Holes.” At the entrance to the Tour 18 facility is a sign that states in bold lettering “Tour 18 — America’s Greatest Eighteen Holes.” Tour 18 has been aggressive in advertising its golf course in numerous golf magazines and newspapers. In those ads, Tour 18 uses its slogan “America’s Greatest Eighteen Holes” as well as other captions that emphasize its concept of replicating famous golf holes: “Tour 18 — A Golfer’s Dream; 18 of America’s most famous golf holes on one course.” (PX. 114). “Tour 18 is the only golf course of its kind in the world. Each hole is a careful simulation of one of America’s most famous golf holes.” (PX. 115). “Featuring exact replicas of some of the top courses in the country, Tour 18 is the greatest collection of holes in golf.” (PX. 113). ‘We started out with a list of more than 300 of "the nation’s best holes, and carefully narrowed it down to the best 18.” (PX. 112). Tour 18 places these advertisements and others in both local and national media publications such as the Houston Chronicle, Golf Digest, Golf Houston, Corporate Golfer, and other promotional golf brochures and newsletters. In addition to touting its own name, Tour 18 has used plaintiffs’ service marks, PEBBLE BEACH, HARBOUR TOWN, PINE-HURST, and depictions of the lighthouse, extensively in its advertising. For example, pictures of Tour 18’s replica lighthouse appear on the majority of Tour 18’s brochures, including the front cover of the Tour 18 scorecards in Humble and Flower Mound, yardage guide, and promotional mailer. The replica lighthouse appears on the front cover of Metro Houston Golfer magazine with the name “Tour 18” at the bottom. The replica lighthouse also appears inside the Tour 18 brochure with the following statement: Each hole ... is a painstaking re-creation of one of golfs most famous challenges. You begin with the Lighthouse Hole from Harbour Town (including a replica lighthouse from the Hilton Head Island, S.C. course) and end with the Blue Monster from Doral in Florida. In between there’s Amen Corner from Augusta, Ga., the Island Hole from Sawgrass in Florida, the Church Pews from Pennsylvania’s Oak-mont and historic selections from a dozen other eourses-including Pebble Beach and North Carolina’s Pinehurst. (PX. 117). In a March 19, 1994 Tour 18 press release, the following appears: Your round starts off with Hilton Head’s Harbour Town 18 par 4, complete with its trademark red and white stripped [sic] lighthouse. (PX. 115). A photo of the replica lighthouse appears on the back of Tour 18’s promotional brochure with the following caption inside the pamphlet: Imagine yourself facing the awesome challenge of Augusta’s famous Amen Corner, or contemplating Harbour Town’s # 18 compete with the red and white striped lighthouse to line up your tee shot, then finishing off with Doral’s “Blue Monster” but before that, you’ll be faced by some of the most renowned golfer’s challenges, like ... Pinehurst #3 ... and many others. No this is not a dream, this is Tour 18. Tour 18 is the only golf course of its kind in the world. Each hole is a careful simulation of one of America’s most famous golf holes_ Each hole features something unique ... [a]nd with a little imagination you can almost smell the salty air and hear the seals barking as you play Pebble Beach’s # 14. Tour 18 supplies its customers with scorecards on which to keep their score. Tour 18 has used two scorecard versions. On both scorecards, the name TOUR 18 appears on the front cover and the names of the golf holes replicated by Tour 18 are placed on the inside to identify Tour 18’s replica holes. For example, the phrase PEBBLE BEACH 14 is adjacent to the number 13 on Tour 18’s scorecard, indicating that Tour 18’s Hole 13 is a copy of the original Pebble Beach Hole 14. A picture of the replica lighthouse appears on the back of the current scorecard. A picture of the replica lighthouse also appears on score card for the Tour 18 Flower Mound course. Tour 18 also has a yardage guide and book for its customers to purchase if desired. A yardage guide provides golfers with information such as the layout and configuration of the holes including the distance between hazards and the total length of the hole. Tour 18’s yardage guide has a picture of the lighthouse replica on the front cover and the guide contains a caption describing the layout of each replica hole and some history about the original courses. Tour 18 placed wooden signs at the beginning of each Tour 18 golf hole that inform the golfer which replica hole he or she is playing. For example, on Tour 18 Hole 1, there is a detailed sign with a drawing of the layout of the hole and a caption describing the original hole: “The Lighthouse Hole” — 18th Hole/Har-bour Town. One of the most familiar sights in golf is the 18th Hole at Harbour Town Golf Links. Bordered by the Cali-bogue Sound and dominated by the lighthouse, this hole has become one of the most difficult finishing holes on the PGA Tour. Tour 18 also uses plaintiffs’ service marks in its menu: available at the “Inn on the Tour” restaurant are “The Harbour Town” hamburger, “The Pinehurst” tuna salad, and “Pebble Beach” French Toast. In sum, Tour 18 uses plaintiffs’ service marks frequently and prominently in its brochures, scorecards, and other written materials. Pebble Beach argues that Tour 18’s unauthorized use of the mark PEBBLE BEACH in its scorecards, yardage guides, signs, and advertising is unlawful. Resorts also complains of Tour 18’s use of the mark PINEHURST in their signs, literature, and advertising. Harbour Town complains of Tour 18’s use of the mark HARBOUR TOWN and the depictions of the replica lighthouse in their signs, literature, and advertising. V. The Tour 18 Disclaimers Tour 18 placed disclaimers in many of its written materials and on the signs in front of each Tour 18 golf hole. Tour 18 argues that the disclaimers are sufficient to quell any confusion generated by copying plaintiffs’ golf holes and using their service marks. The original Tour 18 scorecard contains the following notice: “All Tour 18 golf holes are simulations of the originals.” The current scorecard contains the following notice: “The design of this course was inspired by great holes from 16 different golf courses. None of the courses endorse, sponsor, or are affiliated with Tour 18.” The same disclaimer appears on Tour 18’s yardage guide and promotional brochures. Attached to the wooden signs standing at each .Tour 18 tee box is a disclaimer. At Tour 18 Hole No. 1, which is a replica of Harbour Town Hole 18, is a sign that states: “The design of this hole was inspired by the famous 18th Hole at Harbour Town. Tour 18 is not affiliated with, endorsed, or sponsored by Harbour Town.” At Tour 18. Hole 3, which is a replica of Pinehurst No. 2 Hole 3, is a sign that states: “The design of this hole was inspired by the famous 3rd hole at Pinehurst. Tour 18 is not affiliated with, endorsed, or sponsored by Pinehurst.” At Tour 18 Hole 13, which is a replica of Pebble Beach Hole 14, is a sign that states: “The design of this hole was inspired by the famous 14th Hole at Pebble Beach. Tour 18 is not affiliated with, endorsed or sponsored by Pebble Beach.” An additional sign is attached to the sign at Tour 18’s first hole tee-box. The sign states, “The design of this course was inspired by the great holes from the 16 different golf courses. None of these courses endorse, sponsor, or are affiliated with Tour 18.” In its current promotional brochure Tom-18 uses photographs of various Tom 18 golf holes. In the bottom right corner of each pictme Tom 18 placed the name of the golf comse from which the Tour 18 golf hole was copied. For example, there is a photo of Tom 18’s replica of Pinehurst No. 2 Hole 3 and appearing in the bottom right corner is the PINEHURST mark. There is also a photo of Tom 18’s replica of Harbour Town Hole 18 with the HARBOUR TOWN mark on the photo. Apparently recognizing that placing plaintiffs’ names on pietmes of its own golf holes might cause consumers to believe that the photos depict plaintiffs’ original holes rather than Tom 18’s copies, Tom 18 placed the following notice below the last photo: “Actual Photographs taken at TOUR 18-Houston.” While Tom 18 has placed some disclaimers in most of its promotional brochmes, yardage guides, and on the golf course signs, numerous advertisements in newspapers, magazines, and other trade publications have no disclaimers. For example, the cover of the Fall 1994 issue of Metro Houston Golfer has a pictme of the Tom 18 replica lighthouse and a detailed advertisement for Tom 18 inside the magazine. However, there is no disclaimer in the magazine. Torn 18 also has a mailer that it sends to potential customers. The mailer displays a large drawing of the Tom 18 replica lighthouse and the phrase “Harbour Town Golf Links-the Lighthouse Hole.” There is no disclaimer in the mailer. VI. Tom 18 Scores an Ace The evidence at trial showed that since its opening in late 1992, Tom 18 has been extremely successful. In its first year of business Tom 18 made profits of approximately 1.7 million dollars on their initial investment of approximately 5 million dollars to build the Tom 18 Humble comse. Tom 18 is a public “daily fee” golf comse with green fees of $55 during the week and $75 on weekends. Tom 18’s overwhelming success is evident in that golfers who go to play Tom 18 are willing to pay green fees in excess of those collected by other public daily fee golf eomses in Houston of comparable difficulty and quality. As a result, Tom 18 sells more rounds per year and charges higher green fees than the average of comparable daily fee golf eomses in the Houston area. Furthermore, Tom 18 in Humble has been so successful that Tom 18 quickly opened another Tom 18 comse in Flower Mound, Texas, near Dallas. The evidence indicates that the Dallas comse has been equally as successful and profitable as the Houston comse. According to Tom 18’s owners, Tom 18 is planning to expand into several other cities in the U.S., including possible sites in Arizona, Georgia, and Virginia. The evidence shows that Tour 18’s success and its ability to compete effectively among other daily fee golf courses in Houston is directly attributable to its concept of replicating golf holes from famous courses and its aggressive advertising of those courses’ names. Because of its replica concept, Tour 18 has received frequent publicity on television and in various articles in the Houston Chronicle, New York Times, Golf Digest, Sports Illustrated, Golf World, Golf Illustrated, and Smithsonian. (PX 126). Invariably, every article emphasizes Tour 18’s replica golf hole concept and the ability of golfers to play golf holes from plaintiffs’ and other famous courses. Tour 18’s own financial advis- or who was responsible for obtaining expansion financing for Tour 18 testified that “the value, in my estimation, of Tour 18 is the fact that they’ve accumulated a number of holes which golfers can relate to and that’s the value — that’s what differentiates that from any other golf course.” Plaintiffs are not pleased about the success their golf holes and service marks have generated for Tour 18. Asserting claims for federal trade dress and service mark infringement, unfair competition, and dilution, plaintiffs argue that Tour 18 misleads golfers about the quality and difficulty of plaintiffs’ golf holes and has damaged and diluted the good will and strong reputations of their golf courses. SERVICE MARK INFRINGEMENT AND UNFAIR COMPETITION Plaintiffs claim that Tour 18’s use of their service marks PEBBLE BEACH, PINE-HURST, HARBOUR TOWN, and the lighthouse at Harbour Town constitutes service mark infringement and unfair competition in violation of Lanham Act sections 32(1) and 43(a). 15 U.S.C. §§ 1114(1), 1125(a) (1996). Section 32(1) of the Lanham Act governs claims for infringement of federally registered service marks. To recover for infringement of a registered service mark under section 32(1), a plaintiff must establish, first, that its mark is valid, and second, that the defendant’s use of the mark is likely to cause confusion. A defendant is then liable for infringement if he uses (1) any reproduction, counterfeit, copy or colorable imitation of the mark; (2) without the registrant’s consent; (3) in commerce; (4) in connection with the sale, offering for sale, distribution or advertising of any goods; (5) where such use is likely to cause confusion or to cause mistake or to deceive. 15 U.S.C. § 1114(l)(a); Boston Professional Hockey Association, Inc. v. Dallas Cap & Emblem Mfg., Inc., 510 F.2d 1004, 1009-10 (5th Cir.), cert. denied, 423 U.S. 868, 96 S.Ct. 132, 46 L.Ed.2d 98 (1975). Section 43(a) of the Lanham Act provides a civil cause of action for infringement of unregistered marks. In order for an unregistered mark to be protectable under section 43(a), the mark must be capable of distinguishing the plaintiffs services from those of others. Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 2757, 120 L.Ed.2d 615 (1992). This standard is met when the mark is “either (1) is inherently distinctive or has acquired distinctiveness through secondary meaning. Id. Infringement is then established through a showing of likelihood of confusion. A cause of action for unfair competition is also provided for in section 43(a). A. Validity of Plaintiffs’ Service Marks Proof of registration of a service mark with the United States Patent and Trademark Office (“PTO”) is prima facie evidence of the registrant’s exclusive right to use the registered mark in commerce for the services specified in the registration, but it does not preclude an opposing party from “proving any legal or equitable defense or defect which might have been asserted if such mark had not been registered.” 15 U.S.C. § 1115(a); Soweco, 617 F.2d at 1184. If however, a registrant has used its mark in connection with the services specified for five continuous years after the registration date and filed an appropriate affidavit, the mark is deemed “incontestable.” 15 U.S.C. § 1065. Ownership of an incontestable mark constitutes conclusive evidence of the registrant’s right to exclusive use of the mark in commerce for the services specified in the registration, subject only to the few defenses enumerated in 15 U.S.C. § 1115(b). Park ’N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 195-96, 105 S.Ct. 658, 662, 83 L.Ed.2d 582 (1985); Soweco, 617 F.2d at 1184. In analyzing the validity and strength of a trade or service mark, the Court analyzes the mark in accordance with the classic trademark taxonomy set out by Judge Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2nd Cir.1976). Specifically, a trade or service mark may be (1) fanciful; (2) arbitrary; (3) suggestive; (4) descriptive; or (5) generic. Fanciful, arbitrary, or suggestive marks are inherently distinctive and protectable without a showing of secondary meaning. Sicilia Di R. Biebow & Co. v. Cox., 732 F.2d 417, 425 n. 3 (5th Cir.1984). Generic marks are never protectable, and descriptive marks are protectable only on a showing of secondary meaning. Id. 1. PEBBLE BEACH Pebble Beach provided evidence showing that it owns federal service mark number 1,065,027, which consists of the phrase PEBBLE BEACH and is for “providing golfing facilities.” Pebble Beach also provided evidence that it has used the mark continuously and in connection with the provision of golfing services for over five years. Therefore, the mark PEBBLE BEACH is ineontestible and is conclusive evidence of Pebble Beach’s exclusive right to use the mark in commerce for the services specified. 15 U.S.C. §§ 1057(a), 1115(a). 2. PINEHURST Resorts owns federal service mark number 1,601,470 for the phrase PINE-HURST for golf course services. Unlike PEBBLE BEACH, PINEHURST is not an ineontestible mark. However, receipt of a registration for the mark PINEHURST automatically invokes a statutory presumption that the mark is valid and protectable. 15 U.S.C. § 1115(a). The presumption of validity given to a registered mark shifts the burden of proof to the party challenging the validity of the mark. Burke-Parsons-Bowl-by Corp. v. Appalachian Log Homes, Inc., 871 F.2d 590, 593 (6th Cir.1989). To rebut this prima facie showing, Tour 18 argues that Resorts obtained its registration for the mark PINEHURST through fraud on the Patent and Trademark Office (“PTO”). Specifically, Tour 18 presented evidence that “Pinehurst Country Club” in Denver, Colorado has used the name PINEHURST since its inception in 1958. Tour 18 claims that when Resorts filed its application to register the mark PINEHURST for country club services, it made sworn statements to the PTO attesting that it had no knowledge of existing uses of the mark PINEHURST. Tour 18 contends that contrary to Resorts’ declaration, it had actual knowledge of Pinehurst Country Club’s “prior” use of the mark PI-NEHURST for country club services and therefore committed fraud on the PTO in obtaining its registration. A senior user of a mark is entitled to claim exclusive rights and seek a federal registration even though there may exist and it knows of a junior user of the mark. Citibank, N.A. v. Citibanc Group, Inc., 724 F.2d 1540 (11th Cir.1988); see 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 31.21[8][d][ii] (3rd ed. 1996) (hereinafter referred to as “McCarthy”) (“If an applicant has a good faith belief that it is the senior user, then the oath cannot be fraudulent. Any alleged failure to disclose use by junior users is irrelevant and could not be material to the grant of a federal registration.”). In this case, the evidence conclusively shows that Resorts and its predecessors have used the mark PINEHURST to signify its golfing services since 1898. Pinehurst Country Club in Denver has used the mark only since the club’s creation in 1958. Whether Resorts knew of Pinehurst Country Club’s use of the mark PINE-HURST when it made its application to the PTO is irrelevant since Resorts had a good faith belief that it was the senior user of the mark. Thus, Resorts’ registration of the mark without mention of Pinehurst-Denver’s junior use of the mark does not constitute fraud on the PTO. Tour 18 also challenges the validity of the PINEHURST mark by arguing that it is geographically descriptive. Terms that are descriptive of a geographic location or origin of goods or services are not inherently distinctive. Therefore, such marks can only be protected under the Lanham Act if they have achieved secondary meaning. Boston Beer Co. v. Slesar Bros. Brewing Co., Inc., 9 F.3d 175, 180 (1st Cir.1993). A mark is geographically descriptive if it describes to consumers the geographic origin of the goods or services rather than the source of the goods or services. Appalachian Log Homes, Inc., 871 F.2d at 594. Since PINEHURST is a registered mark, it is presumed valid and Tour 18 has the burden of presenting sufficient evidence indicating that “Pinehurst” is geographically descriptive. To make this showing, Tour 18 presented evidence that Pinehurst is designated as a location on a map and that there are highway signs indicating the route to Pinehurst. Tour 18 did not offer a consumer survey or other empirical evidence indicating that consumers associate the mark PINE-HURST with a geographic location in North Carolina. Resorts argues that the mark PINEHURST is not descriptive but is an arbitrary mark that is entitled to protection without proof of secondary meaning. Where a developer chooses an arbitrary mark to designate a development, the mark is protectable despite the geographic aspects of the development. See Prestwick, Inc. v. Don Kelly Bldg. Co., 302 F.Supp. 1121, 1124 (D.Md.1969) (mark “Tantallon” when used for a planned community was not geographically descriptive since it had “no generally known geographic significance” and prior to the development the area had no general geographic name); In re Pebble Beach Co., 19 U.S.P.Q.2d 1687 (T.T.A.B.1991) (holding that the mark “17 Mile Drive” was not geographically descriptive since the term was created by Pebble Beach Company’s predecessor to denote a scenic seventeen mile stretch of road within the Del Monte Forest). PINEHURST is an arbitrary name selected by the developer of the Pinehurst resort. Thus, the mark is inherently distinctive and not geographically descriptive. Furthermore, if there is any geographic connotation to PINEHURST, such meaning has developed over time since the creation of the Pinehurst resort and is directly attributable to the growth and success of the resort. See Prestwick, 302 F.Supp. at 1123. Alternatively, even if Tour 18 had carried its burden of showing that PINE-HURST is geographically descriptive, the mark is still protectable if Resorts can show that the mark has achieved secondary meaning. A geographically descriptive mark has secondary meaning when the mark no longer causes the public to associate the goods or services with a particular place, but with a particular, albeit anonymous, source. Boston Beer, 9 F.3d at 181. Factors to be considered in determining whether a term has acquired secondary meaning include: (1) the length and manner of use of the mark by the plaintiff; (2) the nature and extent of advertising and promotion of the mark; (3) efforts made to promote a conscious connection, in the consumer’s mind, between the mark and a particular product or service; and (4) the defendant’s intent in copying the mark. Id. at 182. After considering the evidence, the Court finds that the mark PINEHURST has achieved secondary meaning due to Resorts’ long and exclusive use of those service marks and the notoriety of the PINEHURST mark as demonstrated by the multitude of books, articles, and other media coverage given to the resort and No. 2 course. Additionally, Resorts’ considerable advertising efforts and expenditure of money toward developing a reputation and goodwill for its PINEHURST mark justifies a finding of secondary meaning. Zatarains Inc. v. Oak Grove Smokehouse, Inc., 698 F.2d 786, 795 (5th Cir.1983). Pinehurst conducts an extensive nationwide marketing campaign by placing advertisements in numerous national golf publications such as Golf and Golf Digest magazines. Pi-nehurst has also been aggressive in seeking out major professional golf tournaments to further the national reputation of the course and resort. The No. 2 course was recently named the host course for the 1999 U.S. Open, one of only four “Grand Slam” tournaments held each year. All of these factors weigh in’ favor of a finding of secondary meaning. Lastly, evidence indicating that Tour 18 intentionally copied the exact mark PINE-HURST and uses it frequently and prominently in its advertising and promotional brochures is strong evidence of secondary meaning. Vision Sports Inc. v. Melville Corp., 888 F.2d 609, 615 (9th Cir.1989). Indeed, while Tour 18 disputes the fame and distinctiveness of Pinehurst No. 2 Hole 3, Tour 18 has never disputed that the overall Pinehurst No. 2 golf course is a famous golf course. Thus, if PINEHURST is viewed as a geographically descriptive term, it has acquired a secondary meaning apart from its geographic connotations. 3. HARBOUR TOWN Sea Pines seeks protection for the mark HARBOUR TOWN. Although Sea Pines does not own a federal service mark registration for HARBOUR TOWN, it is entitled to protection as a common law service mark pursuant to Lanham Act section 43(a) if it is either inherently distinctive or has acquired secondary meaning. 15 U.S.C. § 1125(a). Tour 18 argues that the phrase HARBOUR TOWN is not protectable as a service mark because it is geographically descriptive. For the same reasons the Court found PINEHURST inherently distinctive and not geographically descriptive, the Court finds here that HARBOUR; TOWN is not geographically descriptive. Specifically, HARBOUR TOWN is an arbitrary mark chosen by its developer to designate its goods and services and has always been associated with Harbour Town and its golf course services. In re Pebble Beach, 19 U.S.P.Q.2d at 1688. Therefore HARBOUR TOWN is not geographically descriptive and is protect-able absent secondary meaning. Alternatively, even assuming HAR- s BOUR TOWN is geographically descriptive, Sea Pines demonstrated that HARBOUR TOWN has achieved secondary meaning. Sea Pines has continuously used the mark HARBOUR TOWN for golfing services since the course was completed in 1969. Furthermore, as a public course whose success depends on golfers who travel from around the world to play, Sea Pines has been aggressive in marketing its course nationwide. Even before the Harbour Town course was completed, Sea Pines’ predecessors convinced the PGA to hold an annual tournament — the MCI Heritage Classic — at Harbour Town Golf Links. The tournament has added fame, national reputation, and goodwill to the HARBOUR TOWN mark. Finally, Tour 18’s intentional copying of the HARBOUR TOWN mark and use of the mark prominently in its advertisements and promotional brochures is strong evidence of secondary meaning. Therefore, this Court finds that the mark HARBOUR TOWN is a valid protecta-ble common law service mark for Sea Pines. 4. The Lighthouse at Harbour Town Sea Pines does not own a registered mark for the lighthouse for golfing services. However, Sea Pines claims a common law service mark in depictions of the lighthouse for golfing services. Tour 18 challenges the validity of the lighthouse as a service mark for Sea Pines on three separate grounds. First, Tour 18 argues that Sea Pines may not assert any service mark interest in the lighthouse because it no longer owns the physical structure. Second, Tour 18 contends that Sea Pines abandoned any service mark rights in the lighthouse during the 1980’s when Sea Pines used the Compass Rose and not the lighthouse as its corporate mark. Finally, Tour 18 argues that Sea Pines has allowed uncontrolled licensing and use of the lighthouse as a mark to such an extent that it has lost its significance or distinctiveness as an indicator of source for Harbour Town Golf Links. The Lanham Act provides that a mark is deemed abandoned when its use has been discontinued with an intent not to resume üse or, “when any course of conduct of the registrant, including acts of omission as well as commission, causes the mark to lose its significance as an indication of origin.” 15 U.S.C. § 1127. Abandonment is an affirmative defense on which defendants bear the burden of proof. Exxon Corp. v. Humble Exploration Co., Inc., 695 F.2d 96, 99 (5th Cir.1983). The evidence does not support Tour 18’s contention that Sea Pines abandoned the lighthouse as an identifying mark. While Sea Pines Company used the Compass Rose as its corporate logo in the 1980’s, the lighthouse was still used during that period as a mark for Harbour Town Golf Links and Sea Pines used representations of the lighthouse on various soft goods in its golf shops. Nor has Tour 18 presented any evidence demonstrating an intent by Sea Pines to abandon the mark as an indicator of source. To the contrary, Sea Pines’ continual use of the lighthouse to designate Harbour Town Golf Links and the company’s adoption of the lighthouse as its logo and mark in 1991 confirm this conclusion. Furthermore, since Sea Pines’ predecessors reserved trademark rights in depictions of the lighthouse when the physical structure was sold in 1985, Tour 18’s argument that the mark has been abandoned holds little weight. Indeed Sea Pines entered into a trademark licensing agreement with Fogelman granting Fogelman the right to use the lighthouse as a mark in its business. (PX 614). Likewise, Tour 18’s argument that Sea Pines abandoned the lighthouse as an identifying mark by failing to police third party uses is not supported by the law or evidence. While the existence of multiple users of a mark may be relevant to assessing the strength or weakness of a mark, Amstar Corp. v. Domino’s Pizza, 615 F.2d 252, 259 (5th Cir.1980), such uses are not relevant to a finding of abandonment. 2 McCarthy § 17.05 at 17-25. Furthermore, even if the Court considers the third party uses cited by Tour 18, they are uses unrelated to golfing services. Therefore they do not establish that the lighthouse has lost its ability to act as an identifier of source for Sea Pines’ golfing services. Contrary to Tour 18’s argument, the evidence indicates that Sea Pines has aggressively policed third party uses of the lighthouse. Sea Pines submitted numerous examples of cease and desist letters and other correspondence sent by its attorneys and corporate directors to third party users of depictions of the lighthouse requesting that they discontinue using the lighthouse in their advertisements. (PX 572-585, 589-615). Sea Pines also presented evidence of numerous licensing agreements it has entered into allowing third parties to use the lighthouse in advertising and other promotional efforts for beer cans, travel magazines, greeting cards, calendars, and other products. (PX 614, 615, 618-623). These licenses, combined with the numerous cease and desist letters, indicate that Sea Pines has never had an intent to abandon its rights in the lighthouse. Rather, the evidence shows a clear intent by Sea Pines to maintain the lighthouse as an identifier of source for its golf and resort service. Furthermore, the mere fact that Tour 18 copied the lighthouse and uses it prominently in much, if not most, of its advertising materials is testament to the strength and value of the lighthouse as an indicator of source for Harbour Town. Tour 18 also argues that Sea Pines may not assert service mark rights in the lighthouse because Sea Pines does not own the physical structure. The Lanham Act does not require a party to “own” a word, symbol, or other identifying mark before it may be granted protection from infringement. Rather, all that is required is that a party “use” the mark in commerce to identify its services and distinguish them from the services of others. 15 U.S.C. § 1127; see Boston Hockey, 510 F.2d at 1014 (noting that under trademark law, a party acquires rights to a symbol in the public domain through use of the mark and the public’s association of the mark with the user). In this case, the evidence shows that since 1969 Sea Pines has used the lighthouse as an identifying mark for its golfing services at Harbour Town Golf Links. Additionally, the evidence indicates that over time and through Sea Pines’ use of the lighthouse as a service mark, the public has come to associate the lighthouse as a designator of source for Harbour Town Golf Links. Therefore, the Court finds that the Harbour Town lighthouse is a valid, enforceáble service mark designating Sea Pines’ golfing services at Harbour Town Golf Links. B. Likelihood of Confusion Infringement of a valid service mark occurs when there is a likelihood of confusion among the relevant class of customers and potential customers that is generated by the defendant’s use of the plaintiffs’ mark. 15 U.S.C. §§ 1114(1), 1125(a). Tom-18 argues that there is no likelihood of confusion arising from its use of plaintiffs’ service marks because golfers playing Tom 18 in Houston, Texas will not be confused into, believing they are actually in, for example, California playing Pebble Beach Golf Links. Tom 18 reads the confusion requirement too narrowly. Courts have consistently applied an expansive interpretation of likelihood of confusion, holding that “ ‘likelihood of confusion’ may be found absent confusion as to somee; trademark infringement ocems also Vhen the use sought, to be enjoined is likely to confuse pmchasers with respect to .... [the products’] endorsement by the plaintiff or its connection with the plaintiff.’ ” Fuji Photo Film v. Shinohara Shoji Kabushiki Kaisha, 754 F.2d 591, 596 (5th Cir.1985) (quoting Kentucky Fried, Chicken Corp. v. Diversified Packaging Corp., 549 F.2d 368, 384 (5th Cir.1977)); Nike, Inc. v. “Just Did It” Enters., 6 F.3d 1225, 1228 (7th Cir.1993); Jordache Enters., Inc. v. Levi Strauss, 841 F.Supp. 506, 514-15 (S.D.N.Y.1993). While golfers at Tour 18 may not be confused as to source since they will know they are playing a replica constructed by Tour 18 and not the real Pebble Beach Hole 14, they may still be confused into believing Pebble Beach sponsored or approved Tour 18’s use of their service marks and golf hole designs or that the parties- are otherwise affiliated. See Champions Golf Club, Inc. v. The Champions Golf Club, Inc., 78 F.3d 1111, 1116 (6th Cir.1996); Moore Business Forms, Inc. v. Ryu, 960 F.2d 486, 491 (5th Cir.1992) (consumer’s confusion involving perceived affiliation or sponsorship between the parties was actionable). Furthermore, courts may com sider evidence showing that consumers assumed the owner of a mark gave “permission” to the alleged infringer to use the mark. Anheuser-Busch, Inc. v. Balducci Publications, 28 F.3d 769, 772, 775 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 903, 130 L.Ed.2d 787 (1995) (treating false assumption of permission as evidence of actual confusion, and as synonymous with a false assumption of the statutory term “approval” in Section 43(a)); University of Georgia v. Laite, 756 F.2d 1535, 1546 (11th Cir.1985) (holding that 10-15 people who falsely assumed that defendant had permission to use plaintiffs mark was “persuasive” evidence of actual confusion). Thus, the relevant inquiry in this case is whether Tour 18’s use of plaintiffs’ service marks is likely to cause consumers to believe that the parties or their services are affiliated in some manner or that plaintiffs sponsored or otherwise gave permission to Tour 18 to copy their golf holes or use their service marks. In determining whether there is a likelihood of confusion, the Court may consider a number of factors including: (1) the type or strength of plaintiffs mark; (2) the degree of similarity between plaintiffs and defendant’s marks; (3) the similarity between plaintiffs and defendant’s goods or services; (4) the identity of plaintiffs and defendant’s customers; (5) the similarity of plaintiffs and defendants’ advertising; (6) the defendant’s intent; (7) the existence of actual confusion. Taco Cabana Int’l v. Two Pesos, Inc., 932 F.2d 1113, 1122 (5th Cir.1991), aff'd, 505 U.S. 763, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Roto-Rooter Corp. v. O’Neal, 513 F.2d 44, 45 (5th Cir.1975). It is not necessary for a plaintiff to show that all or even a majority of the factors are present. Armco, Inc. v. Armco Burglar Alarm Co., 693 F.2d 1155, 1159-60 (5th Cir.1982). (a) Strength of plaintiffs’ service marks In determining the scope of protection to be given to plaintiffs’ marks, the Court must consider the strength and distinctiveness of the marks. “Strong marks are widely protected, as contrasted to weak ones.” Amstar Corp., 615 F.2d at 259 (citations omitted). The strength of a service mark for the purposes of analyzing likelihood of confusion is dependent upon both the placement of the mark on the spectrum of distinctiveness, from arbitrary to generic, and the extent to which consumers in the relevant marketplace recognize the mark as an indicator of source. See Sun Banks of Florida, Inc. v. Sun Federal Sav. & Loan Assoc., 651 F.2d 311, 315-16 (5th Cir.1981). Also relevant to a mark’s strength is the extent to which third parties use identical or substantially similar marks in the marketplace. Id. Amstar Corp., 615 F.2d at 259. Plaintiffs argue that their service marks are arbitrary and therefore strong and entitled to the broadest scope of protection. Tour 18 contends that plaintiffs’ service marks are geographically descriptive and therefore weak. Additionally, Tour 18 points to various third party uses of plaintiffs’ marks in arguing that Court should narrowly construe the scope of protection accorded plaintiffs’ marks. Tour 18’s argument regarding the deserip-tiveness of plaintiffs’ marks is without merit. The Court determined above that the marks PINEHURST and HARBOUR TOWN are not geographically descriptive since they are arbitrary marks chosen to identify their resorts and their golfing services. Additionally, even if HARBOUR TOWN and PINE-HURST could be viewed as geographically descriptive marks, the Court also found above that the marks have achieved secondary meaning. Evidence