Jordache Enterprises, Inc. v. Levi Strauss & Co.

MEMORANDUM OPINION AND ORDER

In this action involving two nationally known manufacturers and distributors of jeans and jeans apparel, plaintiff Jordache Enterprises, Inc. (“Jordache”) moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment against Levi Strauss & Co. (“Levi”). Specifically, Jordache seeks an order declaring that its use of the trademark “Jordache Basics 101” 1 *510 (1) is not likely to cause the public to be confused that jeans and jeans apparel sold in association with that mark are manufactured or are otherwise sponsored by Levi, and such use therefore does not infringe any rights Levi may have in the mark “501” under §§ 32(1) and 43(a) of the Federal Trademark Act (the “Lanham Act”), 15 U.S.C. §§ 1114(1), 1125(a), and the common law of unfair competition; (2) does not constitute a false designation of the origin or affiliation, or a false description or representation of characteristics and qualities of such jeans under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and the common law of unfair competition; (3) does, not cause an impairment of or a reduction in the distinctiveness of Levi’s “501” trademark, pursuant to section 368-d of the New York General Business Law; and (4) does not otherwise appropriate any advertising value associated with Levi’s “501” mark under the common law of unfair competition. Jordache also moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Levi’s counterclaims.

Levi opposes Jordache’s motions and cross-moves for summary judgment on its counterclaims, alleging that Jordache’s use of the mark “Jordache Basics 101” and design: (1) is likely to cause confusion, mistake or deception and constitutes infringement of Levi’s “501” mark in violation of § 32(1) of the Lanham Act, 15 U.S.C.. § 1114(1); (2) constitutes a false designation of origin in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (3) dilutes the distinctive quality of the “501” trademark and Levi’s family of three-digit marks in violation of New York’s antidilution statute, N.Y.Gen. Bus.Law § 368-d; and (4) misappropriates Levi’s advertising and promotional expenditures, and the goodwill and advertising value inherent in Levi’s “501” márk and other three-digit marks, in violation of the law of unfair competition. Alternatively, Levi moves for a preliminary injunction halting Jordache’s use of its allegedly infringing “101” mark until trial.

BACKGROUND 2

I. Jordache

Except where noted, the following facts are undisputed. Jordache is a nationally-known manufacturer and distributor of jeans and jeans apparel, and has sold such products in conjunction with the federally registered “Jordache” trademark since 1978. 3 In 1986, Jordache began using the “Jordache Basics” trademark in the manufacture, sale, promotion, and advertisement of its jeans and jeans apparel. In 1988, it also commenced use of the trademark “Jordache Ba-sies 101.” 4 During this same time period, Jordache ran a television commercial that Levi claims to be a simulation of the style, format and mood of Levi’s “501 Blues” advertising campaign.

Subsequently, beginning in February 1991, Jordache used “Jordache Basics 101 with wings and stars design” in commercial advertisements to promote a line of Jordache jeans. These advertisements appeared in magazines such as Mademoiselle, Seventeen, Cosmopolitan and Redbook, as well as on approximately 320 outdoor promotional displays at bus shelters in New York City, Los Angeles and San Francisco. In addition, an *511 advertisement incorporating the mark “Jor-dache Basics 101 with wings design” appeared in the September 15,1991 men’s fashion supplement of The New York Times Magazine. Between November 25,1991 and January 19, 1992, Jordache also sponsored television commercial advertisements featuring the “Jordache Basics” and “101” marks. Subsequently, from February 1992, through May 1992, and again in July 1992, Jordache placed advertisements using the “Jordache Basics 101” mark in The New York Times Magazine, Glamour, Mademoiselle, Seventeen, Cosmopolitan, Rolling Stone, Vogue and Playboy. 5

Between October 1990 and February 1991, Jordache manufactured and distributed approximately 600 dozen men’s jeans that were promoted as “Jordache Basics 101 with wings and stars designs” and “Jordache 101 with wings and stars designs.” Most of these jeans were sold in early 1991 to several small retailers, not including any department stores or large specialty chains. An additional 200 dozen jeans were ordered for distribution and sale in the fall of 1991 and the winter of 1992, and 1,000 dozen “Jordache Basics 101” jeans were ordered for production and shipment through September 15, 1992. These jeans were labelled, affixed and tagged with the following Jordache identifiers: (1) either the “Jordache Basics,” “Jor-dache Basics 101 with stars and wing designs” or “Jordache 101 with stars and wing designs,” trademark was printed on suede-like fabric which was permanently stitched onto the jeans at the top of the right rear panel and positioned between two belt loops; (2) the trademark, “Jordache,” was stitched in thread to a strip of fabric and placed on one of the rear pockets; (3) metal rivet fasteners and buttons were embossed with the mark, “Jordache;” (4) Jordache’s “Horse-head Design” trademark was placed on a permanent inside tag on which was printed the jean’s size and care instruction information; (5) the “Horsehead Design” also appeared on the zipper pull; and (6) bright colored, detachable “flasher cards” bearing one of the trademarks, “Jordache Basics,” “Jordache Basics 101 with wings and stars designs” or “Jordache 101 with wings and stars designs,” was attached to the jeans at the point-of-sale. 6 The entire line of Jor-dache jeans featured a front zipper fly.

Jordache describes its “101” products as “high waisted, tight body fitting, zipper-front jean[s].” See Deposition of Stephen Baum, taken on July 30, 1991, at 331, annexed to Plaintiffs Statement of Material and Undisputed Facts Pursuant to Local Civil Rule 3(g) (“Jordache’s Rule 3(g) Statement”), as Exh. “7.” According to Jordache, the “Jor-dache Basics 101” style is intended for the woman or man who desires their jeans to have a “tight sexy fit.” See Deposition of David Warren, taken on August 2, 1991, at 82, annexed to Jordache’s Rule 3(g) Statement as Exh. “4.” 7 Jordache jeans for men are priced between $30.00 and $45.00.

Jordache claims that its “Jordache Basics 101” mark forms an integral part of its campaign of advertising and marketing promotion, generating future consumer demand even though the product is not immediately available. According to Jordache, the “Jor-dache Basics 101” concept directs the consumer to a line of basic, five pocket, western-style jeans, by communicating the idea that “like the first course one can take in school in any subject, ‘there is nothing more basic than *512 101 in the Jordache line’ of jeans apparel.” See Jordache’s Rule 3(g) Statement at ¶ 5.

II. Levi Strauss

Levi originated its line of “501” jeans in the 1800’s, when the model number 501 was randomly assigned to a style of jeans containing five pockets, a button fly, and metal .rivets securing the edges of each pocket. In Í969, Levi officially began use of the number “501,” a federally registered mark, as a trademark for the" jeans themselves. 8 The style of jeans utilizing the “501” trademark has remained virtually unchanged for over 135 years and, Levi’s “501” jeans have frequently been referred to as the “original” jeans.

Levi’s “501” jeans can be purchased either in pre-shrunk, or original non-pre-shrunk, or “shrink-to-fit,” forms. Thus, in contrast to Jordaehe’s description Of “501” jeans as “loose fitting,” Levi claims that its “501” jeans, after washing, provide a fit that conforms to the body. Levi’s “501” jeans are available in various fabric treatments, such ' as stonewashed (rocks), stonewashed (chemical), rinsed, bleached, white-washed, electric-washed, and overdyed. The “501” jean is tagged with several Levi identifiers,' including: (1) the “arcuate” design pattern identifier, which is stitched on the two rear pockets; and (2) a permanent red ribbon labelled “Levi,” which is sewn on the jean’s left-hand vertical seam of the right rear patch pocket; (3) the “Guarantee Ticket,” consisting of a leather-like fabric which is sewn on the waistband; (4) a flash card prominently displaying the “501” mark; and (5) a button fly. Generally, “501” jeans are sold at retail prices ranging from $16.99 to $42.00.

In the period 1982-1991, Levi expended over $150,000,000 in advertising that featured the “501” mark. This advertising was conducted via television, posters, print and in-store displays, and is considered the largest advertising program ever conducted for a specific apparel item. Levi “501” jeans have also received extensive publicity in the news media. In the period 1970-1991, Levi sold more than 390 million pairs of “501” jeans, yielding more than $5 billion in revenues.

While “501” jeans are targeted for men, in 1981, Levi introduced a special line of “501” jeans for women. Additionally, since 1987, Levis has produced, advertised and sold a line of women’s jeans identified by three-digit trademarks in the “900” series. Sales of the “900” series models have exceeded $185 million though 1991. The most popular model in this line is the “901” jean, with sales of over 2.7 million pairs, producing revenue of more than $41 million. A youthwear version of “501” jeans was also introduced in 1905. Sales of these jeans between 1970-1991 exceeded $570 million. In conjunction with the “501” trademark that appears on the flashcard attached to the rear pocket of these jeans, the designation “701” appears on the leather patch which is permanently affixed to the garment.

In addition to its jeans utilizing the “501,” “701” and “901” trademarks, Levi offers several different styles of jeans utilizing other three-digit trademarks in the 500 series, including “505,” “506,” “517,” and “550.” The “505” and “517” marks are federally registered. Levi claims that its marketing strategy has been to attract vast purchaser interest in “501,” creating a promotional halo over its other jeans styles. As with its “501,” “701” and “901” jeans, Levi has enjoyed large sales of jeans bearing its other three-digit marks. For example, in the period 1989-1990, sales of the “505,” “506,” and “517” and “550” jeans exceeded 95 million units and amounted to more than $1.5 billion in revenues.

III. Registration of Jordache Trademarks

Between February and April 1988, Jor-dache applied to register with the United States Patent and Trademark Office (“PTO”) the trademarks “Jordache 101,” “Jordache Basics 101,” and “Basics 101.” In the latter part of 1988, Levi filed notices of opposition to each of these marks, claiming that Jor- *513 dache’s use of the number “101” was similar to Levi’s family of three-digit trademarks, and therefore likely to confuse or mislead the public into believing that Jordaehe’s jeans either originated from, were associated with, or were sponsored by Levi. Subsequently, in October 1989, Jordaehe abandoned its application to register those trademarks. Jor-dache claims, however, that it reserved the right “to use trademarks including the numeral ‘101’ in different formats and/or different design configurations.” See letter from Lori B. Cohen, counsel for Jordaehe, to Milton W. Sehlemmer, counsel for Levi of 12/28/89, annexed to Jordache’s Rule 3(g) Statement as Exh. “30.”

On February 1, 1991, Jordaehe filed an intent to use application with the PTO to register the mark “Jordaehe Basics 101 with star and wing design” for use with jeans and jean apparel. Levi opposed Jordache’s application and the opposition was suspended without decision pending the outcome of the instant action.

IV. The Parties’ Claims and Counterclaims

On June 17, 1991, Jordaehe filed an amended complaint, seeking declaratory judgment that (1) its use of the mark “Jor-dache Basies 101” does not violate Levi’s rights in the mark “501” under either §§ 32(1) and 43(a) of the Lanham Act, or the common law of unfair competition; (2) Jor-dache has the right to continue using the mark “Jordaehe Basics 101” free from interference by Levi; (3) its use of the “Jordaehe Basics 101” mark does not dilute and violate Levi’s rights in the “501” mark under N.Y.Gen.Bus.Law § 368-d. Jordaehe also seeks an order preliminarily and permanently enjoining Levi from interfering with, or threatening to interfere with Jordache’s use of the mark “Jordaehe Basics 101,” and instituting any suit or other proceeding placing in issue Jordaehe’s right to use this mark.

Levi answered the amended complaint on June 24, 1991, and asserted four counterclaims against Jordaehe. Specifically, Levi alleges that Jordaehe’s use of the “Jordaehe Basics 101” mark: (1) is likely to cause confusion, mistake or deception and constitutes an infringement of Levi’s registered “501” mark in violation of § 32(1) of the Lanham Act (Count One); (2) constitutes a false designation of origin or affiliation and a false description or representation of the characteristics and qualities of its products in violation of § 43(a) of the Lanham Act (Count Two); (3) dilutes the distinctive quality of the “501” trademark and Levi’s other three-digit marks in violation of the antidilution statute set forth in N.Y.Gen.Bus.Law § 368-d (Count Three); and (4) misappropriates Levi’s advertising and promotional expenditures and the goodwill and advertising value inherent in Levi’s marks in violation of the law of unfair competition (Count Four).

DISCUSSION

I. Summary Judgment Standard

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show 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.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact, which can be done merely by pointing out that there is an absence of evidence to support the non-moving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). The nonmoving party then has the burden of coming forward with “specific facts showing that there is a genuine issue for trial,” Fed. R.Civ.P. 56(e), by “a showing sufficient to establish the existence of [every] element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. at 2552.

The Court “must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion.” Eastway Constr. Corp. v. New York, 762 F.2d 243, 249 (2d Cir.1985); see also Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970); Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir.1988); Knight v. United States Fire Ins. *514 Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). But the Court must inquire whether “there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party,” Anderson n Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986), and to grant summary judgment where the non-movant’s evidence is merely colorable, conclusory, speculative or not significantly probative. Id. at 249-50, 106 S.Ct. at 2510-11; see Knight v. United States Fire Ins. Co., 804 F.2d at 12, 15; Argus Inc. v. Eastman Kodak Co., 801 F.2d 38, 45 (2d Cir.1986), cert. denied, 479 U.S. 1088, 107 S.Ct. 1295, 94 L.Ed.2d 151 (1987). To determine whether the non-moving party has met his or her burden, the Court must focus on both the materiality and the genuineness of the factual issues raised by the non-movant. As to materiality, “it is the substantive law’s identification of which facts are critical and which facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. A dispute over irrelevant or unnecessary facts will not preclude summary judgment, id., but the presence of unresolved factual issues that are material to the outcome of the litigation mandates a denial of the summary judgment motion. See, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12.

Once the non-moving party has successfully met the burden of establishing the existence of a genuine dispute as to an issue of material fact, summary judgment must be denied unless the moving party comes forward with additional evidence sufficient to establish his or her ultimate burden under Rule 56. See Celotex Corp. v. Catrett, 477 U.S. at 330, n. 2, 106 S.Ct. at 2556, n. 2 (Brennan, J., dissenting). In sum, if the Court determines that “the record as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting First Nat’l Bank of Arizona v. Cities Sen. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1969)); see also Weg v. Macchiarola, 654 F.Supp. 1189, 1191-92 (S.D.N.Y.1987).

II. Trademark Infringement

A. Likelihood of Confusion

The Lanham Act prohibits the use of “any reproduction, counterfeit, copy, or color-able imitation of a registered mark” where “such use is likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1114(1)(a). It also holds liable any person who uses in commerce any symbol which “is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods ... by another person.” 15 U.S.C. § 1125(a). To state a claim for trademark infringement or unfair competition, a party must show a “likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.” Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 256 (2d Cir.1987) (quoting Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979)). 9

Actionable confusion is not limited to cases in which the infringer purposely attempts to pass off his product as that of the competitor. Rather, the Lanham Act “outlaw[s] the use of trademarks which are likely to cause confusion, mistake or deception of any kind, not merely of purchasers nor simply as to source of origin.” Syntex Labs., Inc. v. Norwich Pharmacol Co., 437 F.2d 566, 568 (2d Cir.1971). Types of confusion that constitute trademark infringement include where: (1) prospective purchasers believe that the senior user sponsored or otherwise approved of the junior user’s trademark, see Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 205 (2d Cir.1979); (2) potential consumers initially are attracted to the junior user’s *515 mark by virtue of its similarity to the senior user’s mark, even though these consumers are not actually confused at the time of purchase, see Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 523 F.2d 1331, 1342 (2d Cir.1975); and (3) customers are confused as to the source of the junior user’s product when this product is observed in the post-sale context, see Lois Sportswear, U.S.A, Inc. v. Levi Strauss & Co., 799 F.2d 867, 871 (2d Cir.1986).

In deciding the issue of likelihood of confusion, the Court is guided by the multi-factor test set forth by Judge Friendly in the classic case, Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir.1961), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). The so-called “Polaroid factors” for determining whether likelihood of confusion exists consist of eight criteria: (1) strength of the mark; (2) degree of similarity between the two marks; (3) proximity of the products; (4) likelihood that the prior owner will bridge the gap; (5) actual confusion; (6) defendant’s good faith; (7) quality of defendant’s product; and (8) sophistication of buyers. 10 Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d at 495. Questions regarding the likelihood of confusion normally are factual in nature. Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 116 (2d Cir.1984). Nevertheless, “ ‘courts retain an important authority to monitor the outer limits of substantial similarity within which the jury is permitted to make the factual determination whether there is a likelihood of confusion as to source,’ and summary judgment is appropriate if the court is satisfied that the products or marks are so dissimilar that no question of fact is presented.” Id. (quoting Warner Bros., Inc. v. American Broadcasting Cos., 720 F.2d 231, 246 (2d Cir.1983)). As “each [Polaroid] factor must be evaluated in the context of how it bears on the ultimate question of likelihood of confusion as to the source of the product,” Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d at 872, the Court will examine each factor in turn.

1. Strength of the Mark

The first factor — strength of the mark — -weighs heavily in Levi’s favor. The strength of a mark has been defined as “its tendency to identify the goods sold under the mark as emanating from a particular, although possibly anonymous, source.” McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1132 (2d Cir.1979). The relative strength of a mark is measured by its conceptual strength along the spectrum of marks, as well as by its significance in the marketplace. Edison Bros. Stores, Inc. v. Cosmair, Inc., 651 F.Supp. 1547, 1554 (S.D.N.Y.1987). Ultimately, the strength of a mark is a function “of its distinctiveness, or its ‘origin-indicating’ quality, in the eyes of the purchasing public.” McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d at 1132.

Marks are classified in the following categories of increasing distinctiveness: (1) generic; (2) descriptive; (3) suggestive; (4) arbitrary; and (5) fanciful. Two Pesos, Inc. v. Taco Cabana, Inc., — U.S. -, -, 112 S.Ct. 2753, 2757, 120 L.Ed.2d 615 (1992); Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976). Arbitrary and fanciful marks are, by their nature, stronger marks because they are identified solely with a particular product or service. McDonald’s Corp. v. McBagel’s, Inc., 649 F.Supp. 1268, 1274 (S.D.N.Y.1986). “When these marks are registered, they are accorded the highest degree of protection.” Id.

It is undisputed that the “501” mark is arbitrary and fanciful. Arbitrary marks consist of words that neither suggest nor describe any characteristic of the particular good or service with which it is used. See Edison Bros. Stores, Inc. v. Cosmair, Inc., 651 F.Supp. at 1554. As the ordinary meaning of the numeral “501” does not describe any particular quality or characteristic of jeans or jean apparel, the “501” trademark is conceptually strong when applied to such products. Moreover, it is evident that the *516 “501” mark has developed a powerful secondary meaning as, standing alone, it serves to identify Levi as the source of the jeans.

Additionally, the commercial strength of the “501” mark attests to its significance in the marketplace as identifying the source of the goods. Levi’s massive advertising efforts, the length of time during which the “501” mark has been used to describe Levi products, Levi’s aggressive promotion of the “501” mark and the extent of unsolicited media coverage enjoyed by. Levi’s “501” jeans further enhance the markls distinctiveness. Accordingly, the Court finds that Levi has established the strength of the “501” mark as a matter of law. 11

2. Degree of Similarity

The second Polaroid factor the Court must examine is the similarity of the two marks. In determining whether the two marks are similar, the Court must look to the effect on prospective purchasers. Thus, “ ‘similarity in and of itself is not the acid test. Whether the similarity is likely to provoke confusion is the crucial question.’” McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d at 1133 (quoting 3 R. Callman, The Law of Unfair Competition, Trademarks and Monopolies § 82.1(a), at 601-02 (3d ed. 1969)); see also Centaur Communications, Ltd. v. A/S/M Communications, Inc., 830 F.2d 1217, 1226 (2d Cir.1987) (stating that the general impression conveyed to the purchasing public is the pertinent inquiry). “The test is not whether the consumer will know the difference if he sees the competing products on the same shelf. Rather, it is whether he will know the difference if the junior mark is singly presented and he has heard of the senior mark.” Edison Bros. Stores, Inc. v. Cosmair, Inc., 651 F.Supp. at 1555.

The parties hotly dispute whether the Levi and Jordache marks are similar. Levi contends that Jordache’s method of labeling its “101” jeans, as well as its advertising campaigns greatly increase the likelihood that prospective purchasers. will be confused. Conversely, Jordache contends that there is no likelihood of confusion because of the actual and specific use that Jordache makes of the numeral “101.” The Court finds that the degree of similarity between the two marks is a disputed issue of fact upon which reasonable minds may differ.

First, the Court acknowledges that the number “101” is extremely close to “501.” This disturbing similarity stems not only from the fact that both marks consist of three digit numbers, but also from the fact that only one digit is changed and the numbers sound alike when spoken. Furthermore, because Levi uses other three-digit marks, such as “701” and “901” in the marketplace, Jordache’s “101” mark creates the impression that it is yet another item in Levi’s pre-existing “01” series, and substantially increases the likelihood of confusion.

Nevertheless, “[t]he fact that a trademark is always used in conjunction with a company name may be considered by the trial court as bearing on the likelihood of confusion.” McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d at 1134. Jordache confirmed at Oral Argument that it does not intend to use the numeral “101” standing alone, but rather, as part of the trademark “Jordache Basics 101 with wings and stars design.” This mark, attaching the Jordache identifier to the numeral, is substantially less similar to Levi’s “501” mark, and thus, substantially less likely- to cause confusion. Accordingly, as this factor creates a factual dispute, summary judgment is precluded as a matter of law. 12

*517 3. Proximity of the Products

The third Polaroid factor addresses whether, due to the proximity of the competitive products in the marketplace, consumers may be confused as to their source. See Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d at 77. Factors to consider in determining the competitive proximity of the products include appearance, style, function, fashion appeal, advertising orientation and price. McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d at 1134. “Products which directly compete in the marketplace clearly warrant a finding of the highest degree of competitive proximity,” creating a strong likelihood of confusion. Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d at 77.

As an initial matter, the Court notes that Jordache and Levi manufacture and sell a similar product. As the Second Circuit stated in a trademark infringement case involving Levi and another jeans manufacturer, see Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d at 870, “[wjhile stratifying the jeans market with various styles and grades seems to be the current rage, there can be no dispute that the parties before us compete to sell their jeans to the public.”

Jordache points to the different style, cut and fit between its product and Levi’s jeans, and contends that the two companies target different consumers. While Jordache identifies these differences in style and cut, however, it ultimately concedes that the markets are proximate. See PI. Br. at 17. Levi argues further that the prices of the products are within the same range, and that the two jeans models at issue contain five pockets and riveted pocket corners. While the Court acknowledges that Jordache and Levi compete in the same general market, whether the companies, in fact, target slightly different consumers of jeans is an issue of fact for trial.

In any event, should a jury determine that Jordache and Levi do, indeed, compete for slightly different consumers in the jeans market, the third Polaroid factor favors Levi. As this Court has held, there is an even greater likelihood of confusion where the junior user’s product competes for a slightly different market segment than the senior user. Thus, a consumer observing Jordache’s mark

might assume that [Levi] had chosen to enter that market segment using a subsidiary corporation, or that [Levi] had allowed [Jordache’s] designers to use [the “101” mark] as a means of reaping some profits from the designer jeans fad without a full commitment to that market segment. Likewise, in the post-sale context a consumer seeing [Jordache’s] jeans on a passer-by might think that the jeans were [Levi’s] long-awaited entry into the designer jeans market segment. Motivated by this mistaken notion — [Levi’s] goodwill— the consumer might then buy [Jordache’s] jeans even after discovering his error. After all, the way the jeans look is a primary consideration to most designer jeans buyers.

Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d at 874. Accordingly, the Court finds that the third Polaroid factor favors Levi.

4. Likelihood that Levi Will Bridge the Gap

The fourth Polaroid factor seeks to protect the senior user’s interest in being able to enter a related field at some future time. Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d at 874. If the owner of a trademark can show that it intends to enter the market of the alleged infringer, such a showing is indicative of future likelihood of confusion as to source. Id. The more closely the products compete, the shorter the gap is to bridge. Andy Warhol Enters., Inc. v. Time Inc., 700 F.Supp. 760, 766 (S.D.N.Y.1988).

As set forth in Part 3, supra, while Jor-dache and Levi are competing in the jeans market, it is unclear whether the two companies address different segments of purchasers. Accordingly, whether Levi is likely to bridge the gap is also a question of fact.

*518 5. Actual Confusion

The fifth factor looks to whether any consumers have actually been confused by the products bearing the allegedly confusing marks. See Centaur Communications v. A/S/M Communications, 830 F.2d at 1227. Evidence of actual confusion consists of (1) anecdotal evidence of confused consumers in the marketplace; and (2) consumer survey evidence. Id.

Levi concedes that it does not have any anecdotal evidence of actual instances of confusion. It argues, however, that anecdotal evidence of actual confusion is unlikely here as Jordache’s total production of jeans bearing the “101” mark is so insignificant. As Jordache clearly has not infiltrated the market with products bearing the “101” trademark, the Court will not make any negative inference from the fact that Levi has not shown any anecdotal evidence of actual confusion. See Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d at 78 (finding that lack of actual confusion does not warrant an inference against the senior user in light of the short time in which the junior user’s product was on the market).

In addition, the Court finds the survey evidence offered by Levi as evidence of actual confusion to be inconclusive. In 1992, Levi commissioned a consumer-mall intercept survey for the purpose of ascertaining the existence and level of dilution of the Levi “501” mark by Jordache’s use of the “101” mark. 13 Levi maintains that, although the Sorenson Survey was designed to measure dilution, it also yielded evidence of confusion. 14

According to the survey data, when asked whether they had seen or heard of jeans having the number “101” on them, 17.7 percent of the respondents replied that they had seen those jeans before. Of this group, 29.2 percent (5.2 percent of total participants) responded that they had seen the jeans in advertising, 59.4 percent responded that they had seen the jeans in stores (10.5 percent of total participants) and 11.4 percent (2.0 percent of total participants) responded that they had seen them being worn by others.

Jordache contends that the Sorenson Survey is flawed because it did not occur under marketplace conditions, and survey participants did not have a present interest in purc