Diana Packman v. Chicago Tribune Company, an Illinois Corporation, and Front Page News, Incorporated, a California Corporation

On June 15, 1998, in recognition of the Chicago Bulls’ sixth National Basketball Association (“NBA”) championship, the headline of the front page of the Chicago *633 Tribune read “The joy of six.” As it has done on several other historic occasions, the Chicago Tribune Company reproduced its entire front page on t-shirts, posters, plaques and other memorabilia. The Tribune contracted with Front Page News, Inc., to print on t-shirts a collage comprised of the Tribune masthead and six headlines describing each of the Bulls’ NBA victories, including “The joy of six” headline.

Diana Packman holds federal and Illinois trademarks for the phrase “the joy of six,” for use in relation to football and basketball games. She brought this action against the Tribune and Front Page under the Lanham Act for trademark infringement and unfair competition and Illinois law. The district court granted the defendants’ joint motion for summary judgment, holding that the “fair use” defense defeated Ms. Packman’s claims, and, in the alternative, that there was no evidence that consumers were likely to be confused as to the source of the defendants’ products. Ms. Packman appeals from the district court’s summary judgment ruling, as well as from the court’s denial of her motion to compel discovery. For the reasons set forth in the following opinion, we affirm the district court in both respects.

I

BACKGROUND

The phrase “the joy of six” is a play on the 1970s book series The Joy of Sex. 1 It has been used to describe positive feelings associated with six of anything, e.g., the birth of sextuplets, a six-run inning in a baseball game, six characters on a television show, and, in this case, six championships in a sporting event.

A. The History of Ms. Packman’s Trademark

Ms. Packman’s husband, Richard Pack-man, began using the phrase “the joy of six” in the mid-1980s to describe a group with whom he exercised at a local health club at 6:00 a.m. In 1994, the Packmans began printing the phrase on flyers to advertise occasional gatherings of family and friends to watch football games. On July 1, 1997, Ms. Packman obtained a federal trademark for “the joy of six” for use in connection with “entertainment services in the nature of football games.” 2 Beginning in September 1996, the Packmans began using “the joy of six” to promote outings to watch or attend basketball games and on February 3, 1998, Ms. Pack-man obtained a federal trademark to use the phrase in connection with “entertainment services in the nature of basketball games.” 3 Ms. Packman also printed “the joy of six” on small quantities of hats and t-shirts to promote the gatherings, in connection with National Football League teams pursuing a possible sixth Super Bowl championship, in particular the San Francisco 49ers and the Dallas Cowboys and in relation to the Chicago Bulls’ pursuit of a sixth NBA championship.

Ms. Packman did not produce evidence of the number of gatherings or outings, the number of attendees, or the profit, if any, they generated. The record does not contain any documentary evidence of the Packmans’ sales of hats and t-shirts bearing “the joy of six” mark. Taking the Packmans’ deposition testimony as true, *634 however, a small quantity of t-shirts and hats were given away, sold to friends and family, or sold at one Ohio retail outlet and generated little, if any, profit. In addition, Mr. Packman sold an unknown number of “The Joy of Six is Coming ... Chicago Basketball” t-shirts at cost to a homeless street vendor, who presumably resold them. In addition, the Packmans attempted, without success, to negotiate contracts to license “the joy of six” for use in connection with National Football League and NBA teams. Just prior to the Bulls’ sixth NBA championship, the Packmans began negotiating a deal for t-shirts bearing “the joy of six” mark to be produced by a Chicago retailer. The Packmans claim, however, that the retailer backed out of the deal after the Tribune introduced its t-shirts bearing the June 15, 1998 front page and “The joy of six” headline.

B. The Tribune’s Use of “the joy of six”

As early as 1996, sportswriters at the Tribune and the Chicago Suvr-Times began using “the joy of six” to describe the Bulls’ anticipated sixth NBA championship. The Packmans did not protest the use of the phrase they had trademarked, but instead sent a letter, hat and t-shirt to the writers, encouraging them to use the phrase:

Recently granted the registered trademark for “The Joy of Six” slogan, I encourage you to employ this catchy tag line in your writings and reports throughout the 1997-1998 NBA season as the Bulls shoot for their sixth straight year of stellar success.

R.15 at 2. Mr. Packman admitted that, based on this letter, he would not have objected to the writers’ using the phrase in a column headhne.

On June 15, 1998, the Tribune printed, on its front page directly beneath its masthead, a banner headhne that read “The joy of six,” describing the sixth NBA championship won by the Bulls the previous night. The headhne included a graphic listing the six years in which the Bulls had won championships and the names of the defeated teams. The font and size of the phrase in the Tribune headhne are visibly distinct from the font and size used by the Packmans on their flyers, hats and t-shirts. At least eight other newspapers in the United States used the phrase “the joy of six” in their headlines that day.

As it has done with other historic front pages, the Tribune reproduced its front page, including “The joy of six” headhne, on t-shirts, posters, plaques, and other memorabilia, to promote the Tribune and memorialize its coverage of the Bulls’ historic victory. The manager of the Chicago Tribune Store, Mary Tremont, decided, without input from the Tribune’s editorial board, to reproduce the entire June 15 front page onto these promotional items. The items were sold at the Michigan Avenue Tribune Store, at a storefront of the Tribune’s offices in Vernon Hills, and, for one month in 1999, at the Tribune’s kiosk in Woodfield Mall. The Tribune also instructed one of its vendors, Front Page News, to create a t-shirt bearing the Tribune masthead amidst a collage of the actual headlines reporting all of the Bulls’ championships: “Two for Two: Bulls Still Champs,” “Three-mendous,” “Ringmasters,” “The Jackson Five,” and “The joy of six.” Anticipating the Bulls’ winning the championship and the Tribune’s printing a catchy phrase to describe the victory, Ms. Tremont and Front Page designed this shirt before June 15, without knowledge of the exact wording of the headline. The collage t-shirt was sold in the Tribune store and, for four days in 1998, by Front Page to wholesalers.

*635 Shortly after the Tribune’s June 15 headline appeared, several of the Pack-mans’ friends and family members contacted them to congratulate them on their “deal” with the Tribune. These individuals had seen the Tribune’s headline and knew of Ms. Packman’s trademark on “the joy of six,” but there is no evidence that they purchased or attempted to purchase either the Tribune’s memorabilia or the Packmans’ hats and t-shirts.

C. Ms. Packman’s Lawsuit

On November 16, 1999, nearly 18 months after “The joy of six” appeared on the Tribune’s front page and on its championship memorabilia, Ms. Packman filed a complaint against the Tribune and Front Page, alleging trademark infringement, 15 U.S.C. § 1114, unfair competition, 15 U.S.C. § 1125(a), and trademark infringement under Illinois law, 765 ILCS 1086/60. Ms. Packman does not challenge the Tribune’s printing “The joy of six” on its June 15 front page; she only objects to the reproduction of the Tribune’s front page, including “The joy of six” headline, onto promotional memorabilia.

D. Discovery and Ms. Packman’s Motion to Compel

After filing the complaint, Ms. Packman served defendants with two document requests and a set of interrogatories; she also served the Tribune with a notice of deposition under Fed.R.Civ.P. 30(b)(6). On September 1, 2000, the Tribune produced Ms. Tremont, the manager of the Chicago Tribune Store, for deposition on topics 8 through 9 of Ms. Packman’s notice. 4 The Tribune refused to produce a witness on topics 1 and 2, which inquired about the Tribune’s process and procedures for selecting headlines, in particular “The joy of six” headline for the June 15, 1998 front page. The Tribune maintained that topics 1 and 2 were not relevant because Ms. Packman had admitted that she objected not to the Tribune’s use of “The joy of six” on its June 15, 1998 front page, but only to its reproduction of the headline on the championship memorabilia. The *636 Tribune also objected to topics 1 and 2 on First Amendment grounds.

Discovery closed on September 5, 2000. On that date the parties appeared before the district court for a status conference. Ms. Packman’s counsel informed the court that she had not received the discovery she requested because Ms. Tremont was not knowledgeable about three topics in the notice of deposition: (1) the Tribune’s process and procedures for avoiding trademark infringement (topic 3); (2) the Tribune’s process and procedures for avoiding infringement of “the joy of six” (topic 5); and (3) the Tribune’s process and procedures for permitting reproduction of its headlines on products (topic 7). The court instructed Ms. Packman’s counsel that, if he had a complaint about discovery, he should promptly make a motion because the discovery cutoff was that day. The court did not expressly extend the discovery cutoff, but instructed the parties to work out any outstanding issues on their own, and, if necessary, file a prompt motion. At the conference, the defendants also informed the court of their intent to move for summary judgment, and the court set October 3, 2000 as the deadline for filing that motion.

Despite the court’s warning “not to tarry” in filing a motion to compel, Ms. Pack-man waited until October 5, 2000 (two days after the defendants’ motion for summary judgment was filed) to do so. R.27-1 at 5. The district court orally denied the motion at a conference on October 27, 2000, on the grounds that: (1) it was untimely, having been filed after the close of discovery and without explanation for the undue delay; (2) it sought information, i.e., the headline selection policy, that was not relevant because it was not the basis of Ms. Pack-man’s claims; and (3) no witness other than Ms. Tremont could articulate a more express policy for permitting others to reproduce the Tribune’s headlines on products.

E. The District Court’s Decision

On October 3, 2000, the Tribune and Front Page filed a joint motion for summary judgment, and on November 9, 2000, Ms. Packman filed a cross-motion for summary judgment on defendants’ liability. On December 6, 2000, the district court granted defendants’ motion and denied Ms. Packman’s motion. 5 The court found that defendants employed “The joy of six” in a non-trademark use in good faith to describe a characteristic of their product, and, accordingly, the “fair use” defense protected them from liability for trademark infringement or unfair competition under the Lanham Act. In the alternative, the district court found that Ms. Packman could not prevail on her trademark infringement claim because consumers were not likely to be confused about the source of the Tribune’s goods. The court declined to address the two other arguments advanced by defendants in support of then-motion: that Ms. Packman’s “the joy of six” was not a valid trademark because the phrase was generic or, at most, descriptive; and that the Tribune had a First Amendment right to reproduce any of its front pages to promote its newspaper. Having dismissed Ms. Packman’s federal claims, the court also declined to exercise supplemental jurisdiction over her state law trademark infringement claim. 6 This appeal followed.

*637 II

DISCUSSION

A. Motion for Summary Judgment

This court reviews de novo the district court’s decision to grant summary judgment. Albiero v. City of Kankakee, 246 F.3d 927, 931 (7th Cir.2001). Only a “genuine” issue of “material” fact precludes summary judgment. Fed.R.Civ.P. 56(c). Factual disputes are “ ‘genuine’ only ‘if the evidence is such that a reasonable jury could return a verdict for the [non-movant],’ ” and are “ ‘material’ only when they ‘might affect the outcome of the suit under the governing law.’ ” Oest v. Ill. Dep’t of Corrections, 240 F.3d 605, 610 (7th Cir.2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Summary judgment is appropriate when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Thus, in ruling on a summary judgment motion, the district court must decide “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ” Oest, 240 F.3d at 610 (quoting Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505).

In reviewing the district court’s decision, we “must construe all facts in the light most favorable to the nonmoving party.” Albiero, 246 F.3d at 931. The nonmovant may not rest on the pleadings but must adduce evidence “set[ting] forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Ms. Packman must create more than mere doubt as to the material facts, see Albiero, 246 F.3d at 932 (citations omitted), and will not prevail by relying on a mere scintilla of evidence or speculation to support her position, see Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505; Patterson v. Chicago Ass’n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir.1998) (stating that plaintiffs speculation is “not a sufficient defense to a summary judgment motion”) (citation omitted).

In a trademark infringement case, the classification of a word or phrase as descriptive, the determination that a defendant’s use was a non-trademark use in good faith, and the finding that consumers are not likely to be confused about the origin of a defendant’s products are questions of fact. Nevertheless, these issues may be resolved on summary judgment “if the evidence is so one-sided that there can be no doubt about how the question should be answered.” Door Sys., Inc. v. Pro-Line Door Sys., Inc., 83 F.3d 169, 171 (7th Cir.1996). With these principles in mind, we turn to Ms. Packman’s claims.

Ms. Packman submits that, in holding that the fair use defense barred her claims, the district court ignored evidence of defendants’ use of “The joy of six” as a trademark and improperly inferred that defendants acted in good faith. She further argues that the district court committed both factual and legal errors in its likelihood of confusion analysis, and that defendants used the same mark for the same goods in the same geographical area in a manner likely to confuse and which actually confused consumers. At least, she contends, she demonstrated genuine issues of material fact as to the fair use defense and the likelihood of confusion analysis. In addition, Ms. Packman contends that *638 the district court abused its discretion in denying her motion to compel discovery on the issue of defendants’ intent in selecting “The joy of six” for its front page and in reproducing its front page on championship memorabilia.

Defendants respond that the district court properly granted summary judgment in their favor because they used “The joy of six”, in good faith as a descriptive phrase. They also submit that the undisputed evidence demonstrates that there was no likelihood that any consumer would mistake the Tribune’s memorabilia for one of Ms. Packman’s products. They also maintain that Ms. Packman’s “the joy of six” mark is a descriptive phrase unworthy of trademark protection. 7 Finally, they contend that the district court did not abuse its discretion in denying Ms. Pack-man’s motion to compel discovery because it was both untimely and immaterial.

1. The Lanham Act

The Lanham Act protects registered marks from interference by state legislation, prevents unfair competition, and protects against fraud “by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks.” 15 U.S.C. § 1127; Eli Lilly & Co. v. Natural Answers, Inc., 233 F.3d 456, 461 (7th Cir.2000). To prevail on a Lanham Act claim, a plaintiff must establish that (1) her mark is protectable, and (2) the defendant’s use of the mark is likely to cause confusion among consumers. Eli Lilly, 233 F.3d at 461. 8

A trademark includes:

any word, name, symbol, or device, or any combination thereof [used by any person] to identify and distinguish his or her goods, including a unique product, from those manufactured and sold by others and to indicate the source of the goods, even if that source is unknown.

15 U.S.C. § 1127. In order to be registered, a mark must distinguish the applicant’s goods from those of others. See 15 U.S.C. § 1052. The law recognizes five categories of trademarks, in ascending order of distinctiveness: generic, descriptive, suggestive, arbitrary, and fanciful. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768, 112 S.Ct. 2753, 120 L.Ed.2d 615 (1992); Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9-11 (2d Cir.1976) (Friendly, J.). Once a mark is registered, the Act affords a plaintiff one of two presumptions: (1) that her registered trademark is not merely descriptive or generic; or (2) that if descriptive, the mark is accorded secondary meaning. See Liquid Controls Corp. v. Liquid Control Corp., 802 F.2d 934, 936 (7th Cir.1986). The Act provides that:

a mark registered on the principal register ... shall be prima facie evidence of the validity of the registered mark ... and of the registrant’s exclusive right to use the mark in commerce on or in connection with the goods or services specified in the registration subject to any conditions or limitations stated therein, but shall not preclude another person from proving any legal or equitable defense or defect ... which might have been asserted if such mark had not been registered.

*639 15 U.S.C. § 1115(a). Secondary meaning exists “only if most consumers have come to think of the word not as descriptive at all but as the name of the product.” Blau Plumbing, 781 F.2d at 609; see Part II. A.2.b, infra.

The defendant may overcome this presumption with evidence that the mark is merely generic or descriptive, or that it lacks secondary meaning. See Liquid Controls, 802 F.2d at 936 (citations omitted). And, even if the mark is sufficiently distinctive to warrant trademark protection, the defendant may still prevail by showing that its use of the mark is not “likely to cause confusion, or to cause mistake, or to deceive.” 15 U.S.C. § 1114(1)(a); see Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055, 1060 (7th Cir.1995). In addition to attacking the validity of the plaintiffs mark, the defendant may also invoke the “fair use” defense by demonstrating that the alleged infringement “is a use, otherwise than as a mark ... which is descriptive of and used fairly and in good faith only to describe the goods or services of such party....” 15 U.S.C. § 1115(b)(4); see M.B.H. Enter., Inc. v. WOKY, Inc., 633 F.2d 50, 52 (7th Cir.1980). This defense “is based on the principle that no one should be able to appropriate descriptive language through trademark registration.” Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 951 (7th Cir.1992).

In this case, defendants asserted the fair use defense in addition to arguing that there was no likelihood of confusion and that Ms. Packman’s mark was invalid. The district court did not rule on the validity of the mark, nor shall we, because the fair use defense and likelihood of confusion analysis dispose of Ms. Packman’s claims in their entirety.

2. The Fair Use Defense

To prevail on the fair use defense, defendants must show that: (1) they used “The joy of six” in a non-trademark use; (2) the phrase is descriptive of their goods or services; and (3) they used the phrase “fairly and in good faith” only to describe their goods or services. 15 U.S.C. § 1115(b)(4); Sands, Taylor & Wood, 978 F.2d at 951; M.B.H. Enter., 633 F.2d at 52.

a. Non-Trademark Use

The district court held that, because Ms. Packman did not rebut evidence that defendants used “the joy of six” only in a descriptive manner, she failed to raise a genuine issue of material fact as to the nature of defendants’ use of the phrase. Ms. Packman contends that, in reaching this conclusion, the district court ignored facts showing that defendants’ use of “The joy of six” was a traditional trademark use: (1) defendants applied the mark directly to the goods; (2) defendants labeled the items with the phrase; and (3) the phrase is the most prominent text on all the items and, in her view, was used as “an attention-getting symbol.” Appellant’s Br. at 15. We agree with the district court that Ms. Packman failed to rebut the evidence of defendants’ descriptive, non-trademark use of “The joy of six.”

First, the record does not support Ms. Packman’s argument that the Tribune used “The joy of six” to identify itself as the source of the newspaper or the championship memorabilia. Rather, the Tribune’s distinctive masthead, which appears prominently on the front page and on each piece of memorabilia containing the phrase, identifies the source of the products. In addition, the Tribune masthead also prominently appears on one side of the products’ tags, plainly indicating the Tribune as the source. The masthead sig *640 nifies that the products come from the Tribune and not any of the other newspapers that ran the same headline on June 15, 1998. The Tribune’s use of its well-known masthead also identifies the phrase as a newspaper headline reporting on an event, and not as a Tribune trademark. Cf. M.B.H. Enter., 633 F.2d at 54 (radio station’s call letters and frequency, not slogan, identified source of advertising). The phrase “The joy of six” does not identify the source of any of the defendants’ memorabilia, and thus, the defendants’ use was “otherwise than as a [trade]mark.” 15 U.S.C. § 1115(b)(4); cf. Platinum Home Mortgage Corp. v. Platinum Fin. Group, Inc., 149 F.3d 722, 728 (7th Cir.1998) (because “platinum” described quality of mortgage services and did not identify particular source or designate specific origin of services, it was not entitled to trademark protection absent proof of secondary meaning); M.B.H. Enter., 633 F.2d at 55 (defendant’s “I LOVE YOU” slogans attributed quality of civic involvement and words, by themselves, did not designate source of services and thus did not constitute trademark use).

Second, Ms. Packman ignores her own deposition testimony, in which she admitted that, in the context of the Bulls, “the joy of six” referred to happiness about their six championships and that the phrase is widely used to de scribe the joy of six of anything. The Tribune used the phrase “The joy of six” to describe the happiness associated with six Bulls’ championships. On the front page of the Tribune and the championship memorabilia, “The joy of six” reflects that very emotion. See Sunmark, 64 F.3d at 1059 (word or mark is considered descriptive if it merely refers to a characteristic of the product).

Our decision in Sunmark supports the district court’s finding that the Tribune did not employ “The joy of six” as a trademark. In Sunmark, the maker of “Swee- TARTS” candy sought to enjoin Ocean Spray from using the phrase “sweet-tart” to describe its cranberry juice drinks. In addition to finding that Ocean Spray had used “sweet-tart” merely to describe the taste of its drinks, this court noted that Ocean Spray had not claimed exclusive use of the phrase and could not object if other juice-makers used it. See Sunmark, 64 F.3d at 1059. Nor could these defendants have objected to wide use of the phrase, as evidenced by several other newspapers’ printing “the joy of six” headline on June 15, 1998, to describe the Bulls’ championships and the varied use of the phrase to describe positive emotions associated with six of anything, such as sextuplets.

Sands, Taylor & Wood, on which Ms. Packman relies, is distinguishable. The fair use defense was unavailable in that case because the defendant’s slogan, “Gatorade is Thirst-Aid,” used the plaintiff’s “Thirst Aid” mark as a trademark. Sands, Taylor & Wood, 978 F.2d at 954. Integral to the court’s conclusion was evidence that “Thirst Aid” appeared more prominently than “Gatorade” in the advertisements and that the rhyming quality of the two words created a “memorable slogan ... uniquely associated” with the defendant’s “Gatorade” product. Id. Here, the Tribune used its masthead, not “The joy of six,” to foster the association between the products (the memorabilia) and their source (the Tribune). Cf. M.B.H. Enter., 633 F.2d at 54 (defendant’s prominent display of its call letters and frequency in connection with “I LOVE YOU” slogans indicated defendant as source of advertisements and thus was non-trademark use). Furthermore, the wide and varied use of “the joy of six” bars a conclusion that any association between the Tribune and the phrase is unique. Cf. Sunmark, 64 F.3d at 1059 (descriptive use of common phrase was unlikely to consti *641 tute trademark use). And, the masthead and the phrase appear in proximity to each other, but not as part of a “memorable slogan,” rendering any association between the two weaker than was present in Sands, Taylor & Wood.

Accordingly, because Ms. Packman failed to raise a genuine issue of material fact as to the nature of defendants’ use of “The joy of six,” we agree with the district court that defendants employed the phrase in a non-trademark use.

b. Defendants Used the Phrase Descriptively

Descriptive terms “ ‘impart information directly.’ ” M.B.H. Enter., 633 F.2d at 54 (citation omitted). The defendants used “The joy of six” as a headline to describe a newsworthy event and the happiness associated with the Bulls’ sixth NBA championship. This use did not change with the reproduction of the Tribune’s front page onto championship memorabilia. As Ms. Packman herself admitted, “the joy of six” is a phrase commonly used to describe the emotions associated with six of anything. Ms. Packman cannot appropriate the phrase to herself and thereby prevent others from using the phrase in a descriptive sense, as defendants did here. See Blau Plumbing, 781 F.2d at 609-10 (a person “cannot appropriate the English language” and thereby render others inarticulate); M.B.H. Enter., 633 F.2d at 55 (owner of registered mark “ ‘may not appropriate to itself common English slang terms and thus prevent others from using such phrases in their descriptive sense’”) (citation omitted). The district court correctly concluded that no genuine issue of material fact existed as to defendants’ descriptive use of the phrase.

Furthermore, the record lacks any evidence that “the joy of six” had acquired a secondary meaning as used by Ms. Packman, and she does not point to any evidence in rebuttal. Secondary meaning is “a mental association in buyers’ minds between the alleged mark and a single source of the product.” 2 J. Thomas McCarthy, Trademarks and Unfair Competition § 15:5, at 15-9 (4th ed.2001) (emphasis in original). A mark acquires secondary meaning when it has been used so long and so exclusively by one company in association with its goods or services that the word or phrase has come to mean that those goods or services are the company’s trademark. Id. § 15:5, at 15-10; see Platinum Home Mortgage, 149 F.3d at 728. Proof of secondary meaning can be established through direct consumer testimony, consumer surveys, length and manner of use, amount and manner of advertising, volume of sales, place in the market, and evidence of intentional copying. See Platinum Home Mortgage, 149 F.3d at 728; Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 393 (7th Cir.1992). Ms. Packman’s assertion of secondary meaning is purely speculative. She does not tell us how many shirts or hats the Ohio store or the Chicago street vendor sold, how many items she produced, who purchased them, or whether she advertised her products. See Platinum Home Mortgage, 149 F.3d at 729 (rejecting plaintiffs circumstantial evidence of advertising and sales). Thus, the record confirms the absence of a secondary meaning altogether. Ms. Packman used the mark primarily in connection with small group outings to sporting events, did not commercially advertise her outings or her products, and used the phrase in connection with the Bulls for less than three years. See id., 149 F.3d at 728 (plaintiff who used mark for only three years could not demonstrate that mark had secondary meaning). The phrase “the joy of six” did not achieve a level of distinctiveness with respect to Ms. Packman’s goods or ser *642 vices, nor does it exclusively relate to the Bulls’ sixth championship. See Spraying Sys., 975 F.2d at 393 (evidence of third-party use of mark cast further doubt on plaintiffs assertion of secondary meaning). Accordingly, the record supports only one conclusion, that “the joy of six” is merely a descriptive phrase without a secondary meaning, a phrase which defendants, or any other person, may rightfully use. See Blau Plumbing, 781 F.2d at 610 (descriptive mark without secondary meaning was unworthy of trademark protection).

c. Defendants Used the Phrase in Good Faith

Ms. Packman maintains that the Tribune’s knowledge of her trademark (as a result of Mr. Packman’s letter to the sportswriters) before running the “The joy of six” headline and its failure to cease its sale of the championship memorabilia after she threatened legal action are evidence of the defendants’ bad faith. The district court determined that this evidence did not give rise to an inference of bad faith because Mr. Packman’s letter encouraged rather than discouraged use of the phrase, and the Tribune used the phrase in the very manner suggested: as a headline to celebrate the Bulls’ success in winning a sixth championship.

Mere knowledge of Ms. Pack-man’s trademark on the phrase is insufficient to establish that the Tribune acted in bad faith and to preclude summary judgment. See M.B.H. Enter., 633 F.2d at 54. The defendants’ good faith “can be judged only by inquiry into [their] subjective purpose in using the slogan[ ].” Id., 633 F.2d at 54. In M.B.H. Enter., the plaintiff had a registered trademark for the words “I LOVE YOU” for use in entertainment services related to radio programs and had licensed a promotion using the phrase “I LOVE YOU MILWAUKEE” to radio station WISN in Milwaukee. Id. at 51. When radio station WOKY began its own campaign professing its love for Milwaukee, using the phrases “WOKY LOVES MILWAUKEE” and “I LOVE MILWAUKEE” signed by WOKY, the plaintiff sought to enjoin WOKY’s efforts. Id. at 52. Addressing the issue of WOKY’s good faith, the court found that WOKY’s intent to reap commercial advantage from its declarations of love for the city did not demonstrate that WOKY intended to use the phrase as a trademark. Id. at 54. Rather, WOKY’s use of its call letters and radio frequency — its trademarks identifying WOKY as the source — in each of the ads suggested that WOKY lacked the intent to use the slogans as trademarks. Id. at 54-56. Accordingly, the court found that WOKY had not acted in bad faith or with the intent to confuse the public about the source of the affection for Milwaukee. Id.

Similarly, the presence of the Tribune’s distinctive masthead above “The joy of six” headline and on each piece of championship memorabilia will not support an inference that the Tribune acted in bad faith. Nor does the defendants’ receipt of commercial benefit from promoting the newspaper or selling championship memorabilia demonstrate use of “The joy of six” in bad faith. Ms. Tremont, manager of the Tribune Store, testified that she selected the June 15, 1998 front' page for reproduction onto memorabilia consistent with the Tribune’s practice of capturing historical events reported by the newspaper. This decision was made without editorial input and without knowledge of the exact wording of the headline for that day. Therefore the syntax of the headline played no part in the decision to produce and market the Tribune’s products in celebration of the Bulls’ sixth championship, and there *643 fore will not support any inference that the defendants acted in bad faith.

Ms. Packman failed to adduce evidence creating a genuine issue of fact as to any of the three elements of the fair use defense. Accordingly, the district court did not err in finding that defendants’ use of “The joy of six” was a nontrademark use, in good faith, to describe a characteristic or quality of their goods.

3. Likelihood of Confusion

In addition to showing that her mark is protected under the Lanham Act, a plaintiff in a trademark infringement suit must demonstrate that the challenged mark is likely to confuse consumers. See Barbecue Marx, Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1043 (7th Cir.2000). Without determining the validity of Ms. Packman’s “the joy of six” mark, the district court found that she could not prevail because she failed to demonstrate a genuine issue of material fact as to whether consumers were likely to be confused about the source of the defendants’ goods. Ms. Packman now argues that, in granting summary judgment for defendants, the district court failed to draw inferences in her favor, ignored evidence of actual confusion and misapplied the likelihood of confusion analysis. Although likelihood of confusion is a question of fact, the issue may be resolved on summary judgment where the evidence is “so one-sided that there can be no doubt about how the question should be answered.” Door Sys., 83 F.3d at 171 (affirming summary judgment for defendant where there was “no reasonable likelihood that any significant number of consumers could mistake the defendant for the plaintiff’).

Seven factors comprise the likelihood of confusion analysis: (1) similarity between the marks in appearance and suggestion; (2) similarity of the products; (3) area and manner of concurrent use; (4) degree of care likely to be exercised by consumers; (5) strength of the plaintiffs mark; (6) actual confusion; and (7) intent of the defendant to “palm off’ his product as that of another. See Ty, Inc. v. Jones Group, Inc.