to compete.'" Industria Tessuti, 280 F. Supp. at 589.
The similarity of the two marks, the packaging similarities discussed above, and the fact that its trademark search provided First Quality actual knowledge of the "Gentle Glide" mark before it adopted "Gentle Touch" all support, at minimum, a weak inference that First Quality adopted the "Gentle Touch" mark with the intent to capitalize on Playtex's reputation and good will.
VII. Buyer Sophistication
Generally, a lower price indicates that "the normal buyer will exercise relatively less caution, making confusion more likely." Lever Bros. Co. v. American Bakeries Co., Inc., 537 F. Supp. 248, 255 (E.D.N.Y. 1982). This long-established proposition is grounded in common sense; purchasers are more likely to exercise a greater degree of "careful consideration" when larger sums are at stake. Magnaflux Corp. v. Sonoflux Corp., 43 C.C.P.A. 868, 231 F.2d 669, 671 (C.C.P.A. 1956). Thus, while the purchaser of a diamond ring is likely to be "most discriminating . . . careful and deliberate," Reese Jewelry, 278 F.2d at 159, buyers of bread and butter items will be more casual. Lever Bros., 693 F.2d at 259.
The low price point at which tampons are sold supports an inference that buyers will exercise relatively little care when choosing products from the shelf. However, the highly personal nature of the product may offset somewhat the conventional wisdom on this factor of the Polaroid analysis.
Based on the foregoing analysis of the marks and products at issue under the Polaroid framework, the Court must conclude that there is a sufficient question on the merits to "make them a fair ground for litigation" and a balance of hardships tipping in Playtex's favor. Warner Lambert, 86 F.3d at 6.
"Gentle Glide" is a suggestive mark whose over twenty years in the marketplace and two billion dollars in sales are indicative of its substantial strength. In addition to significant similarities in packaging, "Gentle Glide" and "Gentle Touch," each taken as a whole, are syntactically similar and evoke similar product attributes. The products themselves are nearly identical, directly competitive, and sold in a comparable manner in comparable markets. First Quality adopted the "Gentle Touch" mark with actual knowledge of Playtex's long-running use of the "Gentle Glide" mark, and it would seem that the relevant consumers may not carefully differentiate between the two products. Moreover, the likelihood of consumer confusion is sufficient to support the conclusion that Playtex will be irreparably harmed by the introduction of "Gentle Touch" tampons into the market. See Home Box Office, Inc. v. Showtime/The Movie Channel Inc., 832 F.2d 1311, 1314 (2d Cir. 1987).
For all the foregoing reasons, Playtex's application for a preliminary injunction must be, and the same hereby is, GRANTED. Playtex is directed to post a bond in the amount of $ 100,000.00 dollars, and to submit proof thereof to the Clerk of the Court within fourteen days of the date of this Memorandum and Order, as security for the payment of such costs and damages as may be incurred or suffered by First Quality should they be found to have been wrongfully enjoined. See Fed. R. Civ. P. 65(c).
Thomas C. Platt, U.S.D.J.
Dated: Uniondale, New York
December 31, 1996