The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action between two wine producers involving, inter alia, claims of trademark infringement. On February 26, 2008, the Court issued a Decision and Order [#143] which, inter alia, denied a motion for summary judgment [#117] by plaintiff Constellation Brands, Inc. ("Constellation"). Now before the Court is a motion [#145] by Constellation seeking reconsideration of that Decision and Order. For the reasons that follow, the application is denied.
The facts of this action were set forth in detail in the Court's prior Decision and Order [#143] and need not be repeated here. It is sufficient to note that Constellation had sought summary judgment on its first cause of action, which seeks a declaratory judgment that the Arbor Mist mark does not infringe the Arbor Hill mark. The Court denied that motion, after applying the balancing test required by Polaroid Corp. v. Polarad Elec. Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). The Polaroid test requires a court to weigh factors including 1) the strength of the plaintiff's mark; 2) the similarity of plaintiff's and defendant's marks; 3) the competitive proximity of the products; 4) the likelihood that plaintiff will "bridge the gap" and offer a product like defendant's; 5) actual confusion between products; 6) good faith on the defendant's part; 7) the quality of defendant's product; and 8) the sophistication of buyers.
Gruner Jahr USA Publ'g v. Meredith Corp., 991 F.2d 1072, 1077 (2d Cir. 1993). In denying Constellation's summary judgment motion, the Court found, inter alia, with regard to the second Polaroid factor above, that Constellation's and AHA's respective trademarks created "very different impressions," which made that factor weigh heavily in Constellation's favor. However, the Court further found, inter alia, with regard to the fifth Polaroid factor above, that there were triable issues of fact as to actual consumer confusion. In that regard, AHA produced evidence of numerous instances of actual consumer confusion, which the Court summarized as follows:
AHA indicates that numerous customers at the Arbor Hill Grapery have assumed that AHA produced Arbor Mist. (Brahm Affidavit in Opposition to Summary Judgment ¶ 32). AHA also indicates that it received "a number of phone calls, emails, and letters from confused consumers." (Id. at ¶ 36). AHA states that, as a result of these incidents, it created a "form" which it asked customers to fill out when it "found that they were confused as to who was making Arbor Mist," and that "[n]early 30 such confused customers signed such forms." (Id.). From the documentation that AHA has submitted, it appears that of the total instances of alleged confusion, four were inquiries by individuals wondering if Arbor Hill produced Arbor Mist, one of the instances involved a mistake by a telephone operator, six of the instances involved people who actually bought Arbor Mist products and thought that [they were] produced by Arbor Hill, and 36 of the instances involved people who assumed that they could buy Arbor Mist at the Arbor Hill Grapery. (Id., Exhibits W-Y, Exhibits JJ-YY). Additionally, AHA has identified two instances in which local publications, The Finger Lakes Business Almanac and the Rochester Democrat and Chronicle, mistakenly referred to Arbor Mist as Arbor Hill. (Id. at ¶ ¶ 38-39).
AHA has also submitted an affidavit from a former employee, Loana J. Shields ("Shields"), who states that during her six years of employment at the Arbor Hill Grapery, beginning in 1999, "at least fifteen to twenty people per week visited the store looking to purchase Arbor Mist products," and that she "received complaints from customers who were dissatisfied with Arbor Mist products and believed that Arbor Hill produced Arbor Mist due to the similarity between the two products names." (Id., Exhibit II). (Decision and Order [#143] at 14-15) (footnote omitted). After balancing all of the Polaroid factors, the Court concluded that based on AHA's evidence of actual confusion, there were triable issues of fact as to actual confusion, which precluded summary judgment.
On March 11, 2008, Constellation filed a motion [#145] for reconsideration, challenging a single aspect of the Court's Decision and Order, namely, its decision to deny summary judgment on Constellation's first cause of action, based on its balancing of the Polaroid factors, and more specifically, its finding that there are triable issues of fact concerning actual consumer confusion. In support of the application, Constellation first contends that the Court should have granted summary judgment based solely on the dissimilarity of the trademarks. (Reconsideration Motion [#145] at 2). Additionally, Constellation maintains that the Court erred in denying summary judgment, since AHA's evidence of actual confusion is either inadmissible or de minimis. Constellation indicates, in that regard, that AHA's evidence of actual consumer confusion, discussed above, is hearsay. Alternatively, Constellation argues that AHA's evidence of actual confusion is insufficient to show actual consumer confusion as a matter of law, and that the Court should find that the fifth Polaroid factor favors Constellation. Then, Constellation contends, the Court should re-balance the Polaroid factors in this case and grant summary judgment to Constellation.
Although Constellation does not cite a particular procedural mechanism in support of its application, motions for reconsideration are generally analyzed pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. It is well settled that when making such a motion, the moving party must show that the Court overlooked the controlling decisions or factual matters that were put before the Court in the underlying motion. Nakano v. Jamie Sadock, Inc., No. 98 Civ. 0515, 2000 WL 1010825, at *1 (S.D.N.Y. July 20, 2000); Walsh v. McGee, 918 F.Supp. 107, 110 (S.D.N.Y.1996). However, in addition, "[a] court is justified in reconsidering its previous ruling if: (1) there is an intervening change in the controlling law; (2) new evidence not previously available comes to light; or (3) it becomes necessary to remedy a clear error of law or to prevent obvious injustice." See Nnebe v. Daus, No. 06 Civ. 4991, 2006 WL 2309588, at *1 (S.D.N.Y. Aug. 7, 2006). New evidence, for these purposes, must be evidence that "could not have been found by due diligence." Word v. Croce, No. 01 Civ. 9614, 2004 WL 434038, at *4 (S.D.N.Y. March 9, 2004).
These rules are "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the court."
See Walsh, 918 F.Supp. at 110. Strict application of these rules also "prevent[s] the practice of a losing party examining a decision and then plugging the gaps of the lost motion with additional matters." Polar Int'l Brokerage Corp. v. Reeve, 120 F.Supp.2d 267, 268-69 (S.D.N.Y. 2000). The moving party may not use a motion for reconsideration to advance new facts, arguments, or theories that were available but not previously presented to the Court. See Graham v. Sullivan, No. 86 Civ. 163, 2002 WL ...