The opinion of the court was delivered by: Hurley, District Judge
MEMORANDUM OF DECISION AND ORDER
Plaintiff In-grid Lemme ("Plaintiff") filed the present action against defendant National Broadcasting Company, Inc. ("Defendant" or "NBC"), claiming that Defendant's television show "American Dreams" infringes upon Plaintiff's trademark "American Dream." Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons that follow, Defendant's motion is granted and this case is dismissed in its entirety.
The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.
Plaintiff, an immigrant from Germany, is the host of a half-hour talk show entitled "American Dream" that is broadcast on WVVH Hamptons Television, a local cable station. The show is also known as "The American Dream Show" and began airing in 1997. According to the show's website, the show "demonstrat[es] the American Dream by emphasizing . . . family heritage, struggles, goals, dreams and accomplishments." (Def.'s Ex. A.) The show started as a chronicle of immigrants' success stories but later broadened to cover anyone with humble beginnings who "made it big." (Def.'s Ex. E.) The show's introduction features a waving American flag, and the theme song declares: "We followed hope and its golden gleam . . . across the oceans til we found the American dream." (Def.'s Ex. D.)
Plaintiff claims that her show is "seen in the Northeast market generally and specifically New York, Connecticut and Rhode Island." (Pl.'s Aff. in Opp'n, dated Aug. 8, 2005 ("Pl.'s Aff.") ¶ 2.) She also states that the show is seen "world-wide" on the internet. (Id.; see also Def.'s Ex. H, Hamptons TV Goes Online, New York Newsday (Mar. 25, 2004) ("WVVHTV, which up until this week could only be viewed on the East End, started broadcasting its programming on the Web on Tuesday.").)
In September 2002, NBC debuted a one-hour fictional drama entitled "American Dreams" in conjunction with Dick Clark and Universal Television. The show is set in Philadelphia and centers around the experience of the fictional Pryor family during the 1960s. The teenage daughter dances on "American Bandstand" and each episode features musical performances by contemporary musicians that are integrated with clips from "American Bandstand."
NBC began promoting American Dreams in May 2002. The show was broadcast nationally on NBC, reaching millions of viewers. In 2005, the show was canceled and the last episode aired in April 2005. According to Defendant, NBC plans to continue distributing the show in syndication and on DVD.
Prior to launching American Dreams, NBC conducted a title and trademark search. The results of that search are submitted in a document dated May 10, 2002 which is entitled "Title Report -- AMERICAN DREAMS." (Def.'s Ex. M.) The search revealed that on December 18, 1997, Plaintiff applied to register the trademark "AMERICAN DREAM" with the United States Patent and Trademark Office ("USPTO") for a television talk show dealing with topics relating to immigrants. (Def.'s Ex. JJ.) On April 16, 1999, Plaintiff's application was rejected as abandoned. The report also showed numerous television shows and other works that have titles incorporating "American dream."
On July 29, 2002, after NBC began promoting its show, Plaintiff filed another application with the USPTO, which was granted on March 25, 2003. (Def.'s Ex. CC.) Pursuant thereto, Plaintiff registered "AMERICAN DREAM" as a service mark for "ENTERTAINMENT SERVICES IN THE NATURE OF AN ONGOING TELEVISION PROGRAM IN THE FIELD OF A TALK SHOW DEALING WITH THE LIVES OF PEOPLE." (Id.)
On June 17, 2004, Plaintiff commenced the instant lawsuit. Essentially, Plaintiff claims that Defendant's unauthorized use of Plaintiff's federally registered trademark "American Dream" constitutes trademark infringement under the Lanham Act. Plaintiff asserts multiple claims under the Lanham Act as well as several state law claims.
On consent of both parties, Defendant moved for summary judgment pre- discovery (see docket entry 11) and discovery was stayed pending this Court's decision on the motion (see Feb. 17, 2005 Order). For the reasons stated below, Defendant's motion is granted.
I. Applicable Law and Legal Standards
Although Defendant's motion, which is labeled as a motion for summary judgment, was filed pre-discovery, both parties filed Local Rule 56.1 Statements*fn1 and various affidavits and exhibits. In opposition to the motion, Plaintiff repeatedly asserts that there are questions of fact precluding summary judgment; not once, however, does she allude to a need for discovery to support her claims. Even if she had, such bald assertion would have been insufficient to preclude summary judgment. The Second Circuit has instructed that:
[A] party resisting summary judgment on the ground that it needs discovery in order to defeat the motion must submit an affidavit showing (1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.
Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (citations and internal quotation marks omitted). Mere references to the lack of discovery are insufficient to satisfy this test. Id. Here, Plaintiff did not even hint at a need for discovery much less submit the required affidavit. Accordingly, the Court proceeds to a discussion of the merits of Defendant's motion.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).
The district court considering a summary judgment motion must also be "mindful of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.' " Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).
II. Trademark Infringement
To prevail on a claim of trademark infringement, a plaintiff must show that she "has a valid mark entitled to protection under the Lanham Act" and that defendant's use of that mark is likely to cause confusion. 1-800 Contacts, Inc. v. WhenU.Com, Inc., 414 F.3d 400, 407 (2d Cir. 2005). Defendant argues that Plaintiff's claim must fail because she cannot establish as a matter of law that she has a valid mark and because she has failed to present a genuine issue of material fact as to the likelihood of confusion. Because the Court agrees that based on the present record, there are no genuine issues of material fact as to the likelihood of confusion, Defendant's motion is granted.
A. Validity of Plaintiff's Mark
1. Classification of a Mark Generally
The validity of a mark, to a certain extent, depends upon its position along the so-called spectrum of distinctiveness. Courts classify a mark in one of four categories in ascending order of inherent distinctiveness: generic, descriptive, suggestive, and arbitrary. See Star Indus., Inc. v. Bacardi & Co. Ltd., 412 F.3d 373, 384-85 (2d Cir. 2005); see also Brennan's Inc. v. Brennan's Rest., L.L.C., 360 F.3d 125, 131 (2d Cir. 2004). The different categories of inherent distinctiveness have been described as follows:
A generic term refers . . . to the genus of which the particular product is a species, e.g., "Encyclopedia," and is not entitled to trademark registration or legal protection. A descriptive mark is one which conveys an immediate idea of the ingredients, qualities or characteristics of the goods, e.g., "World Book" for an encyclopedia. A suggestive mark is one that require[s] imagination, thought and perception to reach a conclusion as to the nature of the goods, e.g., Coppertone for suntan oil. An arbitrary or fanciful mark is one that has no association with the particular product or service, e.g., "Kodak" for photographic equipment.
Windsor, Inc. v. Intravco Travel Ctrs., Inc., 799 F. Supp 1513, 1522 (S.D.N.Y. 1992) (internal quotation marks and citations omitted).
Generic marks consist of "words identifying the relevant category of goods or services." Star Indus., 412 F.3d at 385; see also Playtex Prods., Inc. v. Georgia-Pacific Corp., 390 F.3d 158, 163 (2d Cir. 2004) ("[G]eneric marks [are] those consisting of words that identify the type or species of goods or services to which they apply, and that are totally lacking in distinctive quality.") (citation and internal quotation marks omitted). In other words, "a mark is generic if, in the mind of the purchasing public it does not distinguish products on the basis of source but rather refers to the type of product," Courtenay Commc'ns. Corp. v. Hall, 334 F.3d 210, 214 n.2 (2d Cir. 2003), e.g., "Magazine" as a magazine title, Time, Inc. v. Petersen Pub. Co. L.L.C., 173 F.3d 113, 118 (2d Cir. 1999). Generic marks "are not at all distinctive and thus are not protectable under any circumstances." Star Indus., 412 F.3d at 385; see also TCPIP Holding Co., Inc. v. Haar Commc'ns., Inc., 244 F.3d ...