OPINION
Defendant Bob D’Amato, who is unaffiliated with Audi, used the domain name mow.atidisport.com to sell goods and merchandise displaying Audi’s name and trademarks. Audi claims that D’Amato’s website infringes and dilutes its world famous trademarks “AUDI,” the “AUDI FOUR RING LOGO,” and “QUATTRO,” as well as the distinctive trade dress of Audi automobiles. Audi also claims that D’Amato violated the Anticybersquatting Consumer Protection Act. The district court granted summary judgment and in-junctive relief to Audi on all claims. The district court also granted Audi attorneys’ fees, but refused to award Audi statutory damages under 15 U.S.C. § 1117(a). D’Amato appeals the grant of summary judgment and injunctive relief and award of attorneys’ fees to Audi. He also appeals the district court’s denial of his Rule 56(f) motion for additional discovery. For the reasons below, we AFFIRM the district court.
I
On February 11, 1999, Defendant Bob D’Amato registered the domain name
www.audispoH.com.
He posted content to the website on June 4, 1999, and April 4, 2000.
Audi AG v. D'Amato,
Audi has shown that in reality, Skal was not affiliated with Audi in any way. 1 Id. at 650. Further, Champion Audi, the employer of Carlson and Cylc, entered into an agreement with Audi providing that: “This agreement does not grant Dealer [Champion Audi] any license or permission to use Authorized Trademarks except as mentioned herein, and Dealer has no right to grant any such permission or interest.” Id. (emphasis added).
Beginning on April 18, 2002, D’Amato agreed with Carlson that he would post hyperlinks to another site, mow. audispoHline.com, which would direct internet customers to an “Audisport Boutique and Services” webpage. This web-page offered goods (such as hats and shirts) with the “Audi Sport” logo, and an email subscription service offering “audis-port.com” email addresses. Id. These items were posted for sale in 2003. Id. at 648. In exchange for posting the link on *540 the website, D’Amato would receive a portion of the sales revenue. Id. at 650. Each item had a Paypal button for customers to make payments.
Prior to posting these items for sale, D’Amato commissioned Thompson Smith, a graphic designer, to create two logos incorporating the AUDI RING LOGO that D’Amato displayed on his audisport.com website. Smith visited the plaintiffs actual www.audi.com website and noticed some items of concern, which he emailed to D’Amato on May 21, 2002:
1. Audi already HAS a “Collection” site that is really well done with “some very limited” Audi Sport goodies. Are we taking over management, production of this and it will then become “audis-port.com”?
2. Are you sure that we have the licensing rights to reproduce “Audi”, “Audi Sport”, quattro, etc. logos? If we do, lets please see this in writing for working with vendors, etc. I will need a copy of this.
3. Will the new company be incorporated, and we are employees/partners or are we going to be sub-contractors for [Audi of America]?
4. If incorporated or LLC as www. audisport.com, do we have a corporate lawyer?
Audi,
While the www.audisport.com website was running, the homepage displayed the message: “Who are we? We are a cooperative with Audi of America, and will be providing the latest products for your Audi’s [sic] and information on Audisport North America.” Id. at 649. D’Amato initially testified that he never received written permission to display Audi Trademarks, but later stated that:
Since the spring of 2003 to the present, I received email, oral, and written communications from Melissa Grunnah, Audi AG, currently Audi AG’s Press Officer. 2 Devin Carlson initially directed me to Melissa Grunnah, who sends me news and press releases by e-mail about Audi racing events. She has on more than one occasion given me permission to post news, content, images and racing information at audisport.com as well as emailed to other multiple parties including audiworld.com. She sends copies of this content by email to multiple people, of which I am one of, on the email distribution list.
Id.
On May 29, 2003, due to the fact that the website had generated no profit, Carlson cancelled any further development. Id. at 650-51. He told D’Amato that he would tell him the actual date he should remove the links, though Carlson never got back to D’Amato about taking them down. On December 19, 2003, December 22, 2003, and January 8, 2004, D’Amato received Cease and Desist letters from Audi. Id. at 651.
D’Amato claims that on February 9, 2004, he “removed references to all approved page designs, all logos developed, and content posted having Audi Trademarks (AUDI, AUDI FOUR RINGS, and QUATTRO)” such that, as a result, “au-disport. com appeared in a noncommercial way.” D’Amato states that through the course of its existence, his “website was transformed from a noncommercial infor *541 mational website, to a site for an Audi’s [sic] licensee, and then back to noncommercial website,” and contends that “Audi AG continues to use and supply content to audisport.com.” Appellant’s Br. at 9.
Despite D’Amato’s contention, the facts show that
www.audisport.com
continued to have some commercial purpose. At the time the district court ruled on summary judgment, D’Amato was still offering to sell advertising space on the website.
Audi,
II
The district court found that there were no issues of material fact and entered summary judgment in favor of Plaintiff Audi for its infringement, dilution, false designation of origin, and cyberpiracy claims. Id. at 670-71. The court denied Audi’s request for statutory damages under 15 U.S.C. § 1117(a), but granted its request for a permanent injunction and attorneys’ fees. Id.
The court also denied D’Amato’s motion to reopen the discovery period through his submission of a Rule 56(f) affidavit. It found that although D’Amato was well aware of the issues with regard to which he sought discovery, he had not attempted to conduct discovery until after business hours on the last day of discovery. Id. at 653.
III
We review a district court’s denial of additional time for discovery for abuse of discretion.
Plott v. General Motors Corp.,
In this case, the discovery period ended on February 28, 2005. D’Amato sought additional discovery in the form of a notice of deposition faxed to Audi after business hours on this day, which Audi did not receive until the next day.
Audi,
D’Amato contends that his delay was excusable because he was unaware of the issue the request pertained to — namely, an alleged abandonment by Audi of its mark “AUDI SPORT” — until'February 16, 2005. Appellant’s Br. at 43-44. Even if we believe D’Amato, this was twelve days prior to the discovery deadline on which D’Ama-to finally made his discovery request. More importantly, D’Amato’s counsel conceded at the magistrate hearing that D’Amato had been aware of the issue this request pertained to since December 14, 2004, a full two-and-a-half months before the discovery deadline.
In
Plott,
we found that the district court did not abuse its discretion in denying Plaintiff Plott’s motion for additional discovery where he had learned of the pertinent issue three weeks before the close of discovery.
Plott,
D’Amato has also failed to show that granting additional discovery time would have changed the outcome of this case. D’Amato contends that Audi abandoned its rights in the AUDI SPORT logo. However, as the district court noted, any dispute over D’Amato’s use of the domain name
urww.audisport.com
is immaterial to the question of whether he is liable for his use of the Audi Trademarks.
Audi,
For the reasons above, we hold that the district court did not abuse its discretion when it rejected D’Amato’s Rule 56(f) affidavit.
IV
A moving party is entitled to summary judgment as a matter of law “ ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.’ ”
Bennett v. Eastpointe,
We review
de novo
a district court’s grant of summary judgment, construing the facts in the light most favorable to the nonmoving party.
Bennett,
A. Trademark Infringement Claim
Under both common law and federal law, “a trademark is a designation used ‘to identify and distinguish’ the goods of a person.” J. Thomas McCarthy, McCarthy ON TRADEMARKS, § 3.1 (4th ed.2004) (quoting 15 U.S.C. § 1127). Under the Lanham Act, 15 U.S.C. § 1051
et seq.,
we use the same test to decide whether there has been trademark infringement, unfair competition, or false designation of origin: the likelihood of confusion between the two marks.
Two Pesos v. Taco Cabana,
We have held that in determining whether there is a likelihood of confusion, the following eight factors should be considered: (1) strength of plaintiffs mark; (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing of channels used; (6) degree of purchaser care; (7) defendant’s
*543
intent in selecting the mark; and (8) likelihood of expansion in selecting the mark.
Wynn Oil Co. v. Thomas,
As to the first factor, “[t]he strength of a mark is a factual determination of the mark’s distinctiveness. The more distinct a mark, the more likely is the confusion resulting from its infringement, and therefore the more protection it is due.”
Frisch’s Restaurant, Inc. v. Shoney’s Inc.,
With respect to the second factor, relatedness of goods, we have held that “if the parties compete directly by offering their goods or services, confusion is likely if the marks are sufficiently similar.”
Daddy’s Junky Music Stores v. Big Daddy’s Family Music Ctr.,
As to the third factor, “[w]hen analyzing similarity, courts should examine the pronunciation, appearance, and verbal translation of conflicting marks.”
Id.
D’Amato contends that his use of the domain name
umnv.attdisport.com
is lawful because Audi cancelled the trademark “AUDI SPORT” in 1993. However, we have held that with respect to domain names, addition of characters along with the mark “does not eliminate the likelihood of confusion.”
PACCAR Inc. v. TeleScan Techs.,
In evaluating the fourth factor, evidence of actual confusion, we have noted that although such evidence is the best indicator of likelihood of confusion, “the absence of actual confusion evidence is inconsequential.” Id. Here, the best evidence is Thompson Smith’s email to D’Amato, supra, where he reveals his confusion with www.audisport.com. He notes that the real Audi website already has similar merchandise available. He further inquires about licensing rights and requests to have something in writing. If Smith, an experienced graphic designer, was confused by the relationship between Audi and D’Ama-to’s business, then a consumer would be more likely to be confused.
With respect to the fifth factor, we consider “the similarities or differences between the predominant customers of the parties’ respective goods or services,” and “whether the marketing approaches employed by each party resemble each other.”
Daddy’s Junky Music Stores,
As to the sixth factor, degree of consumer care, given the fact that the goods and services offered on D’Amato’s website displayed the Audi name and trademark, and the low cost of the items, consumers were unlikely to exercise a high degree of care when making purchases. “Internet users do not undergo a highly sophisticated analysis when searching for domain names.”
Id.
at 253 (citation omitted). We also recognize that customers exercise a lower degree of care when services or goods for sale are inexpensive.
See Daddy’s Junky Music Stores,
With respect to the seventh factor, we have noted that “[t]he intent of defendants in adopting [their mark] is a critical factor, since if the mark was adopted with the intent of deriving benefit from the reputation of [the plaintiff], that fact alone may be sufficient to justify the inference that there is confusing similarity.”
Elby’s Big Boy,
First, the use of a contested mark with knowledge of the protected mark at issue can support a finding of intentional copying.... Second, the nature of [the defendant’s use of the marks on its web sites, such as including the marks in its domain names, repeating the marks in watermarks, and mimicking the distinctive scripts of the marks, indicates an intent to create the impression that the web sites are sponsored or affiliated with [the plaintiff].
PACCAR,
Here, D’Amato used Audi’s trademarks knowing that it appeared that he was intentionally copying the marks. In 1999, when he registered
www.audisport.com,
D’Amato was aware that Audi used the trademarks AUDI, QUATTRO, and the AUDI FOUR RING LOGO. In fact, he emailed Volkswagen of America
3
asking if his registration of the domain name would cause any problems. However, the email bounced back to him, and D’Amato did not take any further action in order to determine whether there were problems using
www.audisport.com.
Further, Thompson Smith’s inquiries regarding D’Amato’s rights to use the Audi Trademarks should have put D’Amato on notice that there were issues with his website and the goods and services for sale. Also, although
*545
D’Amato received some form of permission from Devin Carlson and Bob Skal (neither of whom actually had authorization to grant such permission), D’Amato never received
written
permission.
Audi,
D’Amato contends that Carlson and Melissa Grunnah gave him permission via emails that were legally binding. Appellant’s Br. at 56-58. Even assuming
arguendo
that Carlson and Grunnah were authorized to give D’Amato permission to use the trademarks, in order to create a legally binding contract by electronic means, Michigan law requires that each party
agree
to conduct transactions electronically. Mich. Comp. Laws § 450.835. There is no evidence in the record that Carlson or Grunnah agreed to create a legally binding contract via email authorizing D’Amato to use Audi’s trademarks. Instead, it appears that the emails sent from Carlson and Grunnah to D’Amato simply included press releases regarding new Audi cars. These press releases were sent in the form of a mass email, and D’Amato was but one person on the distribution list. Audi has pointed out that nothing would have prevented D’Amato from posting these press releases on his own personal website. However, D’Amato went far beyond that. He somehow construed the phrase “Text and Photos Courtesy of Audi AG” contained in these Audi Press Releases to give him permission to run
wmu.audisport.com
in the manner he did. While we should construe all facts and inferences in favor of D’Amato on this summary judgment motion, D’Amato’s argument that “Text and Photos Courtesy of Audi AG” somehow absolves him from liability for his commercial use of the Audi Trademarks is objectively unreasonable. We will not draw such unreasonable inferences.
See Willis v. Roche Biomedical Laboratories, Inc.,
With respect to
PACCAR’s
second factor in inferring a defendant’s intent to derive benefit from a plaintiffs goodwill-— namely, defendant’s use of the marks— Audi also prevails. D’Amato used counterfeit (in other words, identical) Audi trademarks in the domain name and throughout the website such as in watermarks and wallpaper.
See PACCAR,
The last factor, likelihood of expansion of product lines, need not be analyzed because the product lines of Audi and www.audisport.com already overlap. Id.
In light of these factors, we agree with the district court’s conclusion that there was a likelihood of confusion.
1. D’Amato’s Defenses to Audi’s Trademark Infringement Claim
D’Amato defends this claim on several grounds. As an initial matter, D’Amato raises the defense that Audi’s claim is barred by the statute of limitations. However, the Lanham Act does not contain a statute of limitations. Rather, courts use the doctrine of laches to determine whether a suit should be barred.
Ford Motor Co. v. Catalanotte,
Audi filed this suit on February 23, 2004. D’Amato contends that he first posted content to
www.audisport.com
on June 4, 1999. When deciding whether a suit is time-barred under the doctrine of laches, a court should consider “(1) whether the owner of the mark knew of the infringing use; (2) whether the owner’s delay in challenging the infringement of the mark was inexcusable or unreasonable;
*546
and (3) whether the infringing user was unduly prejudiced by the owner’s delay.”
Kellogg Co. v. Exxon Corp.,
D’Amato also defends on the ground that he had consent to use the trademarks. Even if Carlson, as a dealer, had permission to use Audi’s trademarks, this agreement with Audi did not give Carlson the right to grant such permission to another party. Therefore, D’Amato did not have the right to profit from the goods Carlson provided. Further, as discussed above, nothing in the press releases sent to D’Amato appeared to confer consent to use Audi’s trademarks for commercial gain. D’Amato’s website also stated that he had a “signed agreement allowing usage of Audi-owned tradenames,” even though no such agreement ever existed.
D’Amato contends that any proof of consumer confusion is rebutted by a disclaimer on his website which stated, “[t]his page is not associated with Audi GmbH or Audi USA in any way.” First, such a disclaimer does not absolve D’Amato of liability for his unlawful use of marks identical to Audi’s trademarks.
Ford Motor Co. v. Lloyd Design Corp.,
[a]n infringing domain name has the potential to misdirect consumers as they search for web sites associated with the owner of a trademark. A disclaimer disavowing affiliation with the trademark owner read by a consumer after reaching the web site comes too late. This “initial interest confusion” is recognized as an infringement under the Lanr ham Act.
PACCAR,
D’Amato also defends his actions on the ground that his “[w]ebsite merely had hyperlinks to goods (hats and shirts) and email hosting services offered by Champion Audi,” and that such “[h]yperlinks create no liability for [him].” Appellant’s Br. at 50. However, even if D’Amato’s intention was in fact non-commercial (which it does not appear to be), the issue is whether his actions had a commercial
effect.
We have stated that “the proper inquiry is not one of intent.... If consumers are confused by an infringing mark, the offender’s motives are largely irrelevant.”
Taubman Co. v. Webfeats,
D’Amato also asserts a defense of fair use, which means that he used the mark for a purpose other than that for which the mark is typically used. The Supreme Court has held that once a plaintiff shows a strong likelihood of confusion, the defendant may offer evidence rebutting the plaintiffs evidence, or simply raise the fair use defense. The Court stated that “all the defendant needs to do is to leave the factfinder unpersuaded that the plaintiff has carried its own burden on that point.”
KP Permanent Make-Up, Inc. v. Lasting Impression, Inc.,
B. Trademark Dilution
“Dilution law, unlike traditional trademark infringement law ... is not based on a likelihood of confusion standard, but only exists to protect the quasi-property rights a holder has in maintaining the integrity and distinctiveness of his mark.”
AutoZone, Inc. v. Tandy Corp.,
It is clear from the record that Audi’s trademarks, on which Audi has spent millions of dollars and which are known worldwide, satisfy the first two factors. Further, because the website sold merchandise, email subscriptions, and advertising space, all with Audi’s logo, the third factor is satisfied. The fourth factor is met, as there is no dispute that
umm. audisport.com
came after the Audi Trademarks. As for the fifth element — whether the junior mark dilutes the senior mark— the Supreme Court has noted that “direct evidence of dilution such as consumer surveys will not be necessary if actual dilution can reliably be proven through circumstantial evidence — the obvious case is one where the junior and senior marks are identical.”
Moseley v. V. Secret Catalogue,
C. Anticybersquatting Consumer Protection Act
The Anticybersquatting Consumer Protection Act (ACPA) was enacted to
*548
curb “the proliferation of cybersquatting— the Internet version of a land grab.”
Lucas Nursery and Landscaping, Inc. v. Grosse,
In order to prevail under the ACPA, a plaintiff must show that a defendant’s use of a domain name was done in bad faith. ACPA provides a list of nine nonexclusive factors which a court should consider in determining whether a defendant acted in bad faith:
(I) the trademark or other intellectual property rights of the person, if any, in the domain name;
(II) the extent to which the domain name consists of the legal name of the person or a name that is otherwise commonly used to identify that person;
(III) the person’s prior use, if any, of the domain name in connection with the bona fide offering of any goods or services;
(IV) the person’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name;
(V) the person’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name that could harm the goodwill represented by the mark, either for commercial gain or with the intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;
(VI) the person’s offer to transfer, sell, or otherwise assign the domain name to the mark owner or any third party for financial gain without having used, or having an intent to use, the domain name in the bona fide offering of any goods or services, or the person’s prior conduct indicating a pattern of such conduct;
(VII) the person’s provision of material and misleading false contact information when applying for the registration of the domain name, the person’s intentional failure to maintain accurate contact information, or the person’s prior conduct indicating a pattern of such conduct;
(VIII) the person’s registration or acquisition of multiple domain names which the person knows are identical or confusingly similar to marks of others that are distinctive at the time of registration of such domain names, or dilutive of famous marks of others that are famous at the time of registration of such domain names, without regard to the goods or services of the parties; and
(IX) the extent to which the mark incorporated in the person’s domain name registration is or is not distinctive and famous within the meaning of [subsec. (c)(1) of this section],
15 U.S.C. § 1125(d)(1)(B)(i).
See also DaimlerChrysler v. Net Inc.,
Audi accepts the district court’s finding that Factors VI through VIII are irrelevant. As for Factors I and II, the district court was correct in finding that D’Amato has no trademark or intellectual property rights in www.audisport.com and *549 the domain name consisted of Audi’s legal name, which was used to identify Audi. With respect to Factor III, although D’Amato also used the website for some legitimate purpose — providing news to Audi fans — he did not have prior use of the domain name for the bona fide offering of goods or services. Those goods and services offered on the site infringed upon Audi’s trademarks from the moment of their initial posting. Under Factor IV, we find that there was not fair use of the mark because D’Amato used www. audisport.com to sell merchandise and email addresses bearing the Audi name, and up until the district court issued the injunction, was selling advertising space bearing the Audi name.
Factor V concerns the defendant’s intent. “As intent is rarely discernible directly, it must typically be inferred from pertinent facts and circumstances.”
International Bancorp, L.L.C. v. Societe Des Baines De Mer Et Du Cercle Des Etrangers A Monaco,
Furthermore, D’Amato’s actions are not excused under the “reasonable belief’ exception in section 1125(d)(l)(B)(ii). He contends that “[e]very email from Devin Carlson and/or Melissa Grunnah .offering content to Mr. D’Amato to post on audis-port.com creates a signed agreement allowing usage of Audi-owned trademarks or trade dress.” Appellant’s Br. at 53. However, as a leading commentator on trademark law explains:
[A] court should ... make use of this “reasonable belief’ defense very sparingly and only in the most unusual cases. That is, the court should place emphasis on the phrase “had reasonable grounds to believe” that the conduct was lawful, focusing primarily upon the objective reasonableness and credibility of the defendant’s professed ignorance of the fact that its conduct was unlawful. Otherwise, every cybersquatter would solemnly aver that it was entitled to this defense because it believed that its conduct was lawful.
J. Thomas McCaethy, McCaethy on Trademarks § 25.78 (4th ed.2004).
See also Harrods Ltd. v. Sixty Internet Domain. Names,
As explained above,' D’Amato did not have permission to use Audi’s trademarks. He had no more than representations from individuals who lacked authority to give such permission, and his requests for written permission were never granted. Further, D’Amato unreasonably interpreted the language contained in press releases to grant him permission to use the trademarks. Following the Cease and Desist *550 letters and this lawsuit, D’Amato continued to sell advertising space. Even construing facts and inferences in a light most favorable to D’Amato, his belief that he had permission to use the trademarks was objectively unreasonable, and therefore, D’Amato should not have the benefit of the reasonable belief defense. We affirm the district court’s finding that D’Amato violated the Anticybersquatting Consumer Protection Act.
D. Injunctive Relief
When a district court grants a permanent injunction in a trademark case, we review factual findings under the clearly erroneous standard and legal conclusions under the
de novo
standard. The scope of injunctive relief is reviewed for abuse of discretion.
Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP,
A plaintiff seeking a permanent injunction must demonstrate that it has suffered irreparable injury, there is no adequate remedy at law, “that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted,” and that it is in the public’s interest to issue the injunction.
eBay Inc., et al. v. MercExchange, LLC,
—- U.S. -,
V
The district court awarded Audi attorneys’ fees under 15 U.S.C. § 1117(a), which provides that courts may award reasonable attorneys’ fees to the prevailing party in “exceptional” cases. Thus, section 1117(a) yields two inquiries: (1) whether Audi was a “prevailing party,” and (2) whether this case was “exceptional.” We review a district court’s award of attorneys’ fees for abuse of discretion, and will not overturn the district court’s determination unless we have “a definite and firm conviction that the trial court committed a clear error of judgment.”
Gnesys, Inc. v. Greene,
D’Amato claims that Audi is not a “prevailing party” on its Lanham Act claim because it did not recover any money damages, and thus is not entitled to attorneys’ fees. In support of his argument, he relies on
Texas State Teachers Ass’n v. Garland Indep. Sch. Dist.
With respect to the second inquiry, although the statute does not define “exceptional,” we have held that “a case is not exceptional unless ‘the infringement was malicious, fraudulent, willful, or deliberate.’ ”
Eagles, Ltd. v. Am. Eagle Found.,
D’Amato contends that he should not be required to pay attorneys’ fees because he changed the website after the Cease and Desist letters and before Audi filed its complaint. However, even if we were to believe his contention that the website changed to non-commercial use before the complaint was filed,
4
this does not absolve D’Amato from liability.
See Shields v. Zuccarini,
VI
For the above reasons, we AFFIRM the judgment of the district court.
Notes
. Nor was Bob Skal affiliated with Champion Audi, according to a statement made by Devin Carlson.
. According to Audi, Melissa Grunnah was not employed directly by Audi. Rather, she was an independent contractor who provided press relations services to Audi.
Audi,
. Volkswagen of America is a subsidiary of and the United States importer of cars manufactured by Volkswagen AG and Audi AG.
. D’Amato’s contention is actually false, because, as discussed above, he continued to sell advertising space on his site.