their products or services are of an inferior quality. There is no evidence to suggest that the quality of defendants' services to their customers is inferior to that of plaintiff. Nor is there any evidence to support any contention that because defendants engage in financial engineering in high risk ventures, that this in any way tarnishes or injures the reputation of plaintiff.
Steven Ely confirmed this by testifying, "I don't consider what Nancy [Havens] does low life. There's nothing wrong with what she does." Tr. at 77. In similar vein, Peter Bain, plaintiff's expert witness, testified that the defendants do not provide a lower quality of service than plaintiff does. Tr. at 169.
8. Sophistication of buyers of plaintiff's and defendants' goods and services. To determine whether a likelihood of confusion exists in this case, the level of sophistication of the relevant purchasers of plaintiff's and defendants' services must be examined. W.W.W. Pharmaceuticals, 984 F.2d at 575. Simply put, can it be maintained that investors who put money into the Haven Fund, or who seek advice from plaintiff as to conservative investments, can likely be confused by Nancy Havens' use of her maiden name in financial engineering involving risk arbitrage, hedging and distressed securities?
In the defendants' business, as in the plaintiff's business, substantial amounts of money are required. These are not simple financial transactions. Nancy Havens testified that the investors with whom she deals "know everyone who does risk arbitrage, they know everyone who does distress, ..., they know everyone who does small growth companies." Tr. at 221.
She testified, "I want people ... who know what I do, who understand the risks that I'm taking, who understand that sometimes deals break but who also understand that sometimes there are very rich rewards ...." Tr. at 215-216. She also said that there was a minimum $ 1 million investment that a limited partner had to make in her fund and that the smallest amount she accepted was $ 100,000, Tr. at 216, and that she has spoken personally to each and every investor in her fund. Tr. at 219. Steven Ely testified that most of plaintiff's clients come through existing clients or referral sources. Tr. at 91.
There is a vast difference in objectives between conservative investing and the financial engineering involved in risk arbitrage or hedging, let alone the financial engineering in bringing companies back from the brink of bankruptcy.
While the plaintiff undoubtedly has pride in its corporate name and mark, it is not Nancy Havens or the defendants who threaten it.
I cannot conclude that investors who are attracted to or could be attracted to conservative investing would be or might be lost to plaintiff because there is a small financial engineering firm using the name "Havens" that invites real risktakers to do business with it.
This case was also brought under the New York Anti-Dilution Law. The purpose of the New York law is largely duplicative of the purpose of the Lanham Act. A showing must be made of a distinctive mark and a likelihood of dilution. See Sports Authority, Inc. at 966. As stated there, dilution can consist of either blurring or tarnishment. Is there, in this case, a likelihood of blurring? Quoting Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 43 (2d Cir. 1994), that court says that blurring "may occur where the defendant uses or modifies the plaintiff's trademark to identify the defendant's goods and services, raising the possibility that the mark will lose its ability to serve as a unique identifier of the plaintiff's product." (Emphasis in original, footnote omitted). Factors similar to those in Polaroid are considered.
Thus, I conclude on the basis of the facts in this case, as they apply under New York law, that there is no blurring or tarnishment. Indeed, the evidence indicates that the Haven Fund enjoys solid growth notwithstanding the existence of the Havens defendants.
Plaintiff has also failed to prove common law claims for trademark and trade name infringement, unfair competition and misappropriation of good will, reputation or business property.
This opinion fulfills the requirements that findings of fact and conclusions of law must be filed. For the reasons given heretofore, plaintiff's suit fails and its Complaint is DISMISSED. Defendants' request for attorney fees is DENIED, there being no exceptional circumstances in this case that would warrant such an award. See Banff, Ltd. v. Colberts, Inc., 996 F.2d 33, 36 (2d Cir. 1993).
IT IS SO ORDERED.
United States District Judge
Sitting By Designation at the Southern District of New York
Dated: May 29, 1997