appears nowhere in his affidavit and was asserted for the first time at the hearing.
Thus, the court finds that there is enough evidence of bad faith to weigh this factor in favor of plaintiff.
7. The Quality of Plaintiff's Product
This factor centers on whether "the good reputation associated with [plaintiff's] mark" could be "tarnished by [the] inferior merchandise of the [defendant]." WWW Pharmaceutical v. Gillette Co. 984 F.2d 567, 575 (2d. Cir. 1993)(citations omitted). Although plaintiff insists that defendant's goods are of inferior quality, it has produced no reliable evidence in support of this claim. Furthermore, the products from each party submitted to the court as exhibits do not appear to be of differing quality. Accordingly, the court finds that this factor weighs in favor of defendant.
8. The Sophistication of Purchasers
The final Polaroid factor which must be considered is the sophistication of purchasers. In the words of the Second Circuit, "the general impression of the ordinary purchaser, buying under the normally prevalent conditions of the market and giving the attention such purchasers usually give in buying that class of goods, is the touchstone." McGregor-Doniger, 599 F.2d at 1137. Courts presume that more sophisticated purchasers are less likely to be misled or confused even if a party uses a mark similar to that of a competitor.
Thus, purchasers of fruit punch are not sophisticated and would not carefully discriminate between confusingly similar marks on different brands because of the product's "modest cost." RJR Foods, Inc. v. White Rock Corp., 603 F.2d 1058, 1061 (2d Cir. 1979). On the other hand, retail purchasers are more sophisticated and are not as likely to be confused by similar marks. Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 626 (2d. Cir. 1983).
Plaintiff seeks to argue that its target audience of young women between the ages of 15-25 is both fashion-conscious and unsophisticated, an assertion that the court finds untenable. If the women which plaintiff targets are indeed fashion-conscious, which seems to be the case, they are likely to exercise a significant degree of care in purchasing their clothing, since the name of the particular designer is important in the fashion world. See McGregor-Doniger 599 F.2d at 1137-38 (holding that trial court did not abuse its discretion in deciding that purchasers of women's sportswear were "sophisticated and knowledgeable.")
However, though this factor does weigh in the defendant's favor, there are two mitigating considerations which must be mentioned. First of all, as was mentioned earlier, the two marks are very similar, and it is possible that even a sophisticated purchaser would be confused between them. Secondly, these individuals, while sophisticated, are not professional clothing purchasers and cannot be expected to have the same level of knowledge as professionals. Accordingly, this factor tips only slightly in defendant's favor.
C. Balancing the Factors
Giving due weight to each of the factors listed above, the court holds that plaintiff has demonstrated a likelihood of success on the merits. Five factors lie in its favor, and only three lie in defendant's favor. Furthermore, three of the factors which favor plaintiff, namely the strength of plaintiff's mark, the degree of similarity between the two marks, and the competitive proximity of the goods, tip significantly in plaintiff's favor while there are no factors which tip heavily in the other direction.
II. Irreparable Harm
A likelihood of success on the merits is not enough to merit a preliminary injunction; a party must also show irreparable harm. However, the Second Circuit has consistently held that:
A preliminary injunction should usually issue when the use of a mark creates a likelihood of confusion in the consumers' minds as to the ownership or sponsorship of a product. Our cases clearly say that establishing a high probability of confusion as to sponsorship almost inevitably establishes irreparable harm.