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element, but merely a means of authentication. Thus, with no affixed picture, there is no fake Dali. D. Fourth factor.
The Foundation contends that the Kostabi Dalis have interfered with potential markets for legitimate Salvador Dali originals, reproductions, and associated products, by creating confusion in the already confused market for works by or associated with Salvador Dali. Plaintiff has affidavits showing that at least one inquiry regarding the Kostabi Dalis concerned whether Salvador Dali had anything to do with them. Defendant counters that the actions of Dali himself and his estate are the primary contributors to the confusion, having signed so many blank canvases that they became impossible to inventory. n8 He further asserts that no serious buyers will be confused or misled as to what they are buying. The Kostabi Dalis bear virtually no resemblance to Salvador Dali's paintings, which are fantastic figurative works. Plaintiff counters that Dali's signed reproductions reach a wider audience than perhaps any artist in history. With this increased market comes a relative decrease in sophistication—many buyers that have never bought art before buy a Dali, and often it is a fraudulent reproduction There is, however, no evidence indicating that any buyer bought a Kostabi Dali believing it to be partially or wholly created by Dali. Further, while there is some crossover in markets, Kostabi's sales network is largely centered in New York while the market for Dalis is virtually everywhere. There is no credible evidence that the Kostabi Dalis stand in direct competition in the market for authentic Dali products.
n8 Federal courts have previously encountered this confusion over Salvador Dali paintings, signatures, and authenticity. The existence of so many unsigned canvases, created for the purpose of making lithographs and other reproductions of Dali's work to last beyond his death, created the reasonable assumption that many legitimate Dali works would be entering the art market. Forgeries containing unauthorized reproductions of his work and signature flooded the market during the 1980s and 1990s. See, e.g., Federal Trade Commission v. Magui Publishers, Inc., 9 F. 3d 1551 (9th Cir. 1993); Center Art Galleries-Hawaii, Inc. v. United States, 875 F.2d 74 (9th Cir. 1989); Jafari v. Walter Findlay Galleries, 741 F. Supp. 64 (S.D.N.Y. 1990); Galerie Furstenberg v. Coffaro, 697 F.Supp. 1282 (S.D.N.Y. 1988).
E. Aggregate assessment. The aggregate assessment necessary for an ultimate decision might be difficult in some cases if the relevant factors weighed heavily on opposite sides of the balance. However, in light of Campbell, with its significant depreciation of the second factor where parodies commenting on an original are concerned, we are satisfied that the balance here markedly favors the defendant. Moreover, we are aware of no "generalized equitable considerations" beyond the four statutory factors, see American Geophysical Union, 60 F.3d at 931, that are relevant to the copyright dispute.
VII. Trademark Infringement
§ 43(a) of Lanham Act protects "any word, term, name, symbol, or device, or any combination thereof . . . likely to cause confusion [about the ] origin, sponsorship, or approval [an an artist's] goods . . . ." This protection extends beyond registered trademarks to include words, names, or symbols [that might] identify and distinguish [a creator's] goods . . . from those manufactured or sold by others and to indicate the source of the goods . . . ." Id.; see Romm Art Creations Ltd. v. Simcha Intl., Inc, 786 F.Supp., 1126, 1134 (1992). While the copyright and trademark issues in this case differ, the arguments for both sides in the trademark issue replicate many of those made for the copyright issue. Plaintiff Foundation alleges trademark and trade dress infringement. Defendant disputes trade dress infringement while acknowledging a valid trademark in the Dali name and signature, claiming fair use. The validity of the trademark itself is therefore not in dispute.
Plaintiff must establish that: "(1) the trade dress, whether a single feature or a combination of features, must be non-functional; (2) the trade dress must have acquired a secondary meaning; and (3) there must be a likelihood of confusion among consumers as to the source of the competing products" to prove trade dress infringement claim and unprivileged imitation—and to prevent copying of the look of a product Id., (quoting Hartford House, Ltd. v. Hallmark Cards, Inc., 846 F.2d 1268 [10th Cir. 1988]. Defendant asserts that Dali used his signature for the entirely functional purpose of identification, flamboyant signature notwithstanding, and thus the trade dress claim is negated. Were this not the case