## Facts

- Estée Lauder Inc. marketed a high-end facial moisturizer using the mark “100%” and sought federal registration, including by obtaining an assignment of a prior “100%” registration from a predecessor owner.
- The Gap, Inc., operating Old Navy, developed a mass-market line of personal-care products (e.g., shampoo, soap, body lotion) using “100% BODY CARE” and related composite phrases containing “100%.”
- Lauder sold through upscale department stores and specialty cosmetics outlets; Old Navy sold primarily through its own stores in strip malls and shopping centers.
- The parties’ products differed in price, packaging, and presentation, and Old Navy’s labels prominently displayed its house marks identifying source.
- Lauder sued under Lanham Act § 43(a) and related state-law theories, alleging infringement and unfair competition.
- The district court found likely confusion and permanently enjoined Gap/Old Navy from using “100%” alone or with other terms as a trademark for specified personal-care and bathroom products.

## Issues

1. Whether “100%,” as used for a facial moisturizer, was a protectable trademark.
2. Whether use of “100% BODY CARE” and related “100%” composite marks for Old Navy personal-care products created a likelihood of confusion under the Polaroid factors.

## Decision

- The Second Circuit reversed the district court’s judgment and vacated the permanent injunction.
- The court assumed, without relying on the point for reversal, that Lauder’s “100%” could be protectable.
- The court held that the district court erred in applying the Polaroid test and that Lauder did not show a legally sufficient likelihood of confusion.
- The court emphasized the weakness of “100%” as a common, laudatory term and the importance of evaluating marks in their full marketplace context (including house marks, packaging, prices, and retail setting).
- The absence of meaningful evidence of actual confusion, combined with distinct channels, product context, and prominent source identifiers, weighed against injunctive relief.

## Legal Principles

- Likelihood of confusion in the Second Circuit is assessed under the Polaroid multi-factor test, considering the marks as encountered in the marketplace rather than by isolating a shared element.
- Common or laudatory terms may function as trademarks but are conceptually weak and receive a narrower scope of protection.
- Prominent house marks, distinct packaging, significant price differences, and divergent retail channels can substantially reduce the probability that consumers will believe products share a source, sponsorship, or affiliation.
- Lack of evidence of actual confusion and the absence of plans to “bridge the gap” into the other party’s market weigh against finding likely confusion, particularly when the plaintiff bears the burden of proof.

## Conclusion

The Second Circuit reversed a trademark injunction because, even assuming protectability of “100%,” the mark’s weakness and the parties’ sharply different marketplace context—including composite wording, prominent house marks, pricing, and channels—made consumer confusion unlikely under Polaroid.


Estée Lauder Inc. v. The Gap, Inc., 108 F.3d 1503 (2d Cir. 1997)