Louis Vuitton MALLETIER, Plaintiff-Appellant, v. BURLINGTON COAT FACTORY WAREHOUSE, CORP., Defendant-Appellee, Four Seasons Handbag Company, and John Does 1-10, Defendants, 217 F. App'x 1

SUMMARY ORDER Plaintiff-appellant Louis Vuitton Malletier appeals from a May 23, 2006 judgment of the United States District Court for the Southern District of New York denying appellant’s motion for preliminary injunction against defendant-appellee Burlington Coat Factory Warehouse Corporation. We assume the parties’ familiarity with the facts and the procedural history of the case.

Upon a review of the record and of the District Court’s opinion, we are uncertain whether the District Court conducted a fully exhaustive analysis of the likelihood of consumer confusion when it applied the criteria set forth in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.1961). Nevertheless, because we find it was not error to deny the preliminary injunction on the record before the Court, we do not vacate the denial of that injunction but remand the cause to the District Court so that a trial on the merits can proceed.

In applying the Polaroid factors during resolution of the parties’ claims at a trial on the merits, the District Court should consider not only the potential for consumer confusion as to the source of the marks in question, but should also consider the potential for confusion as to the “sponsorship, affiliation, connection, or identification” of those marks. Star Indus. v. Bacardi & Co., 412 F.3d 373, 383 (2d Cir.2005).

The District Court should give particular attention to the Polaroid factors in light of the potential for types of confusion other than source confusion, focusing perhaps especially on (1) the proximity of the products and their competitiveness with one another, (2) evidence that the imitative mark was adopted in bad faith, and (3) sophistication of consumers. See, e.g., Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 874-75 (2d Cir.1986); Sports Auth. v. Prime Hospitality Corp., 89 F.3d 955, 964 (2d Cir. 1996).

In considering both source and non-source confusion, the district court should ensure it gives adequate weight to the strength of the Louis Vuitton trademark when weighing the various Polaroid factors. See Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 116 (2d Cir.2006). Finally, we note that the potential for non-source confusion and its applicability to the Polaroid factors may be relevant to Louis Vuitton’s claims under New York’s anti-dilution statute, New York General Business Law § 360-1 (McKinney Cum.Supp.2007). See Hormel Foods Corp. v.

Jim Henson Prods., 73 F.3d 497, 506-08 (2d Cir.1996). In sum, we hereby AFFIRM the decision of the district court and REMAND the cause to that court for further proceedings consistent with this order.