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Sly Magazine, LLC v. Weider Publications L.L.C.
Citation: 346 F. App'x 721Docket: No. 08-2430-cv
Court: Court of Appeals for the Second Circuit; September 23, 2009; Federal Appellate Court
Plaintiff-appellant Sly Magazine, LLC appeals the December 18, 2007 judgment from the district court, which granted summary judgment to defendants-appellees Weider Publications L.L.C. and American Media, Inc. The appeal involves the review of the district court's findings related to the Polaroid factors that assess trademark infringement under the Lanham Act, specifically focusing on whether the plaintiff's mark merits protection and if the defendant's use is likely to cause consumer confusion. The district court's predicate factual findings are reviewed with considerable deference, while the balancing of the Polaroid factors is reviewed de novo. The Polaroid factors include: the strength of the plaintiff's mark, the similarity of the marks, proximity of the products, actual confusion, likelihood of bridging the gap, defendant's good faith, quality of the defendant’s product, and consumer sophistication. The appellate court agrees with the plaintiff that the district court's finding regarding the 'long use' of the 'Sly' nickname by Sylvester Stallone lacks evidence of prior use before the alleged infringement, rendering the fact immaterial. However, the court defers to the district court's other factual findings. It finds that the district court improperly weighed the 'quality of the product' and 'sophistication of customers' factors in favor of the defendants. As the quality of the defendants’ magazine was not alleged to be inferior, this factor should be considered neutral in the analysis. Customer sophistication reduces the likelihood of confusion regarding similar trademarks, as established in Savin Corp. v. Savin Group. The district court concluded that the differing media of the magazines involved made consumer confusion unlikely. Hence, customer sophistication is deemed a neutral factor in the confusion analysis, alongside product quality. Despite two Polaroid factors being neutral, the remaining factors favor the Defendants, leading to the affirmation of summary judgment in their favor regarding the Lanham Act claims. For New York unfair competition claims, a plaintiff must prove actual confusion or likelihood of confusion, along with evidence of the defendants' bad faith. The Plaintiff's failure to establish bad faith resulted in the affirmation of the dismissal of this claim. For trademark dilution claims, plaintiffs must demonstrate the trademark's distinctiveness and likelihood of dilution, which can occur through blurring or tarnishment. The court found no evidence of either, affirming the dismissal of the trademark dilution claim as well. The judgment of the district court is upheld. Additionally, a declaration regarding Sylvester Stallone’s nickname "Sly" was deemed insufficient to prove he has been known by that name since 1976.