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however, the signature has acquired a secondary meaning associated with the works and related products of Salvador Dali, leading to an analysis regarding the likelihood of confusion. We use the test from Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 [2d Cir.], cert. denied, 368 U.S. 820, (1961) for establishing likelihood of confusion. The factors include: (1) Strength of Senior user's mark: Dali was perhaps the best-selling artist in history, and his signature one of the best recognized, readily identifying his paintings and other products. The Court finds in favor of the plaintiffs on this factor. (2) Degree of Similarity between the Two Marks: The defendant's work contains an element that is identical to the plaintiff's claimed trademark, and the defendant makes no pretense to the contrary. The defendant, however, has incorporated plaintiff's mark into a work of conceptual art and presented it in an entirely different context than used by the plaintiff. The Court finds in favor of the defendant on this factor. (3) Competitive Proximity of the Two Products: The markets are not identical, but there is perhaps some crossover between markets for works of Dali and Kostabi—in galleries, auction houses, and other outlets, including E-Bay. Plaintiff's claim of a broad market and lack of sophistication among its buyers undercuts its argument that the crossover is significant. The Court finds in favor of the defendant on this factor. (4) Likelihood Plaintiff Will "Bridge the Gap": Plaintiff claims that defendant has already bridged the gap by selling in same markets that the plaintiff profits from, and that bridging will likely continue or increase, as there are many unsold "Kostabi Dalis." Again, the claimed lack of sophistication among its buyers undercuts plaintiff's argument. The Court finds in favor of the defendant on this factor. (5) Evidence of Actual Confusion:       A crowded field of confusion over Salvador Dali's signature and the authenticity of his works (see, i.e., Galerie Furstenberg v. Coffaro, the line of case involving Center Art Galleries and Magui Publishers), though it is nearly impossible to attribute that confusion to the Kostabi Dalis, which does not replicate or mimic any known Dali works.       There is no direct evidence that a purchaser believed Dali's signature to be authentic, but affidavits and other evidence of inquiries by potential purchasers indicate some initially believed these were works associated with Salvador Dali and perhaps made jointly or successively by Dali and Kostabi.

Plaintiff is correct in observing that this court has ruled, in Mobil Oil Corp. v. Pegasus Petroleum Corp., that even minimal initial confusion is actionable where trademark infringement is involved. Plaintiff is mistaken in relying on Mobil to support its case however. In that case, there was credible evidence of confusion, even if minimal, that might have helped the defendant during a critical stage in negotiations. Further, the issue in that case revolved around trademark confusion between two competing firms. In the instant case there is not only no solid evidence of confusion, but there is no solid evidence that the parties are acting in competition, or that they are selling the same product. The plaintiff's claimed trademark is incorporated into the defendant's product—and is used by the defendant for an entirely different purpose than is used by the plaintiff. The Court finds in favor of the defendant on this factor. (6) Junior User's Good Faith: The defendant agrees that it was his intention to produce a signature identical to Dali's own, and he certainly intended to capitalize on his use of the Dali name. His elusiveness as to the meaning of the work does not fully rebut plaintiff's assertion of bad faith. Nonetheless, the defendant has given sufficient evidence that his use qualifies as parody for the purposes of stating a critical position. The plaintiff's assertion that the Kostabi Dalis have sold for higher prices than any of Kostabi's similarly sized previous works stands unrebutted, but no evidence is offered to show that this is attributable to the use of the Dali name. The Court finds in favor of the defendant on this factor. (7) Quality of the Junior User's Product: Plaintiff does not dispute the quality of the defendant's works, but qualifies this assessment as proof of the possibility of confusion in that they contain virtually identical reproductions of Dali's signature. This Court is satisfied that Mark Kostabi has achieved a measure of quality, based upon reviews and sales. The Court finds in favor of the defendant on this factor. (8) Sophistication of the Purchasers: As stated above, plaintiffs assert that Dali's work and intellectual properties are marketed to one of the broadest markets reached by any artist ever. The Galerie Furstenberg, Center Art Galleries, and Magui Publishers cases offer ample evidence that within that market are potential buyers who are vulnerable to confusion over source and authenticity. We agree that the plaintiffs and Salvador Dali are singularly most responsible for this circumstance, and that it cuts against claims of competition, shared markets, and even confusion, as the Kostabi Dalis are clearly not what even unsophisticated buyers had in mind.

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