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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
Sly Magazine, LLC appeals the district court's December 18, 2007 summary judgment in favor of Weider Publications LLC and American Media, Inc., as established in SLY Magazine LLC v. Weider Publ’ns L.L.C., 529 F.Supp.2d 425 (S.D.N.Y.2007). The appeals court reviews predicate facts underlying the Polaroid factors with considerable deference, while the balancing of these factors is subject to de novo review. Summary judgment is also reviewed de novo, favoring the nonmoving party. The Lanham Act protects unregistered trademarks from infringement by prohibiting any use likely to cause confusion regarding affiliation or origin of goods or services. Courts assess trademark infringement by determining the protectability of the plaintiff's mark and the likelihood of consumer confusion, applying the Polaroid factors: strength of the mark, similarity of marks, proximity of products, actual confusion, bridging the gap, good faith of the defendant, product quality, and consumer sophistication. The court disagrees with the district court's finding of "long use" of the "Sly" nickname by Sylvester Stallone, noting insufficient evidence of prior use and deeming the disputed fact immaterial. Despite deferring to the district court’s other factual findings, the court finds that the district court improperly weighed the "quality of the product" and "sophistication of customers" factors in favor of the defendants. There was no allegation of inferior quality for the defendants’ magazine, making this factor neutral rather than favorable to the defendants. The sophistication of customers affects the likelihood of confusion regarding similar trademarks; more sophisticated purchasers are less likely to be confused. The district court concluded that the distinct media used for different magazines makes consumer confusion unlikely, rendering customer sophistication a neutral factor in the analysis. Consequently, the district court's overall assessment of the Polaroid factors favored the Defendants, leading to the affirmation of summary judgment in their favor regarding Lanham Act claims. For New York unfair competition claims, a plaintiff must demonstrate actual confusion or a likelihood of confusion, along with evidence of the defendants' bad faith. The plaintiff's failure to present genuine material facts on bad faith resulted in the affirmation of the dismissal of their state law claim. In trademark dilution claims in New York, a plaintiff must prove that the trademark is distinctive and that dilution is likely. Evidence of dilution can be established through blurring or tarnishment, but the court found no supporting evidence in the record for either. Thus, the district court's grant of summary judgment on this claim was also affirmed. Additionally, the Defendants' claim that Sylvester Stallone was known as "Sly" since 1976 was unsupported by the sources cited, as they did not substantiate this assertion. The judgment of the district court was ultimately affirmed.