author: KRAM, District Judge.

text:
    NINA RICCI, S.A.R.L. and Jacqueline Cochran, Inc., Plaintiffs, v. GEMCRAFT LTD., Alcourt and Associates, Ltd., and Jaytab Industries, Inc., Defendants.
    No. 85 Civ. 2044 (SWK).
    United States District Court, S.D. New York.
    July 9, 1985.

      Cowan, Liebowitz & Latman, P.C. by Arthur J. Greenbaum, Louis J. Ederer, New York City, for plaintiffs; Mattern, Ware, Stoltz & Fressola, P.C. by Robert H. Ware, Melvin I. Stoltz, New York City, of counsel.
    Cooper, Dunham, Clark, Griffin & Horan by Gerald W. Griffin, Peter D. Murray, Thomas G. Carulli, New York City, for defendants.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

This case involves a malodorous dispute between the manufacturers of two fragrant perfumes over the right to use the words. “L’Air” in the appellation of their products. Plaintiffs have moved for a preliminary injunction barring defendants from calling their perfume (and any new related products they market) “L’air D’or.” For the reasons stated below, plaintiffs’ motion is denied.

BACKGROUND

Plaintiffs commenced this action on March 15, 1985, by filing a complaint alleging trademark infringement, unfair competition, and dilution under New York law. On the same day, plaintiffs moved for a temporary restraining order and a preliminary injunction restraining defendants’ activities. The parties stipulated to certain voluntary restraints upon defendants’ activities and to a briefing schedule on plaintiffs’ motion for a preliminary injunction. The Court has received lengthy, and excellently prepared, briefs from the parties and numerous affidavits detailing some of the facts involved. The Court further held an evidentiary hearing on April 4, 1985, which was continued and completed on April 15, 1985. Based upon the pleadings, the briefs and affidavits submitted on the motions, and, especially, the evidence adduced at the hearing, the Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

Plaintiff Nina Ricci, S.A.R.L. (“Ricci”), a French corporation doing business as “Par-fums Nina Ricci—Paris,” is a major international manufacturer of, among other things, cosmetics, perfumes, and other toiletries. Plaintiff Jacqueline Cochran, Inc. (“Cochran”), a New Jersey corporation with offices in New York City, is the exclusive distributor in the United States of Ricci’s perfumes and related products. Ricci manufactures and Cochran distributes and sells a well-known fragrance line under the name “L’Air du Temps.” Ricci is the owner of a federal trademark registration for L’Air du Temps for perfumery, registered on June 4, 1946, and renewed on June 4, 1966.

L’Air du Temps has been sold in the United States since 1947. Currently, L’Air du Temps is available in many forms, including the following: perfume; eau de perfume; eau de toilette; lotions; dusting powder; soaps; bath oils; and creams. L’Air du Temps products are available in approximately 3,000 stores and boutiques around the country. L’Air du Temps now ranks among the five best-selling fragrance lines in the United States with annual wholesale sales of approximately $40 million. Plaintiffs spend approximately $10 million annually on advertising and promoting L’Air du Temps products.

L’Air du Temps perfume is bottled in a unique flacón manufactured by Lalique, a French crystal maker. Perched atop the stopper on this crystal flacón is a pair of doves. The other L’Air du Temps products are packaged in glass or plastic containers, most of which bear doves either molded or embossed thereon. All the L’Air du Temps products are boxed in pale yellow cardboard boxes, and many are wrapped with a pale yellow wrapping paper, each prominently displaying the name Nina Ricci and also the name L’Air du Temps.

For the Christmas 1984 selling season plaintiffs decided to change the packages of some of the L’Air du Temps products (except the perfume), apparently in an attempt to “modernize” and upgrade the packaging. In this regard new containers were produced for some of the products with gold doves and assorted flora embossed on the glass containers. Other of the products were wrapped in gold wrapping paper also bearing the imprint of doves and assorted flora. Plaintiffs, in this action, refer to that new packaging as the “golden theme.” Plaintiffs expended a great deal of time, effort, and money promoting this new collection of L’Air du Temps products, and referred to the items repackaged in this promotion as the “Les Colombes d’Or” collection. The name “Les Colombes d’Or,” however, was not used in any promotions directed at the consumer, nor is it inscribed on any of the gold packaging used for the collection. Indeed, there is no indication that any consumer has ever seen or heard the term.

Defendant Alcourt and Associates Ltd. (“Alcourt”) is a Canadian company engaged primarily in the graphic printing business. Defendant Gemcraft Ltd. (“Gemcraft”) is a Canadian company engaged primarily in the manufacture of fine jewelry. Defendant Jaytab Industries Ltd. (“Jaytab”) is a New York company engaged primarily in the sale of precious stones used in the manufacture of jewelry. In addition to their normal operations, Alcourt manufactures and Gemcraft and Jay-tab distribute a unique perfume containing flakes of pure gold currently being marketed under the name “L’air D’or.”

Defendants expended a great deal of time, effort, and money developing the perfume product and preparing advertising and promotional materials to introduce L’air D’or perfume to the marketplace. L’air D’or perfume was introduced first at a jewelry trade fair in Canada in July, 1984. L’air D’or was then made available to the general public in Canada for purchase at Birk’s jewelry stores sometime in mid-September, 1984. L’air D’or was introduced for sale in the United States at Bloomingdale’s department stores in mid-November, 1984. At present L’air D’or is available only as a perfume (in two generally available sizes—one-quarter ounce and one ounce). Defendants hope to expand the product line into other toiletry forms, such as colognes, dusting powders, lotions, and soaps. L’air D’or perfume can be purchased in a limited number of department stores, perfumeries, and jewelry stores in the United States.

L’air D’or perfume is bottled in a miniature decanter-like bottle. The bottle is then housed in a plush burgundy velvet vault-like box, which, in turn, is packaged inside a burgundy cardboard box. The boxes are then wrapped with burgundy wrapping paper. The boxes and the wrapping paper are emblazoned with the L’air D’or logo.

DISCUSSION

Plaintiffs have moved for a preliminary injunction which would

enjoin [] and restrain [] defendants, their agents, servants, employees and attorneys and all persons in active concert and participation with them, ... from, in any manner, either directly or indirectly, using L’AIR or L’AIR D’OR, alone or in combination, as trademarks in connection with the sale, offering for sale, promotion and advertising of perfumes and fragrance products, or using any other colorable imitation of plaintiffs’ trademark L’AIR DU TEMPS or L’AIR, alone or in combination with plaintiffs’ trademark LES COLOMBES D’OR; or from otherwise falsely designating or representing the origin of defendants’ goods or suggesting in any way that defendants’ goods have been approved or sponsored by, or are in any way associated or connected with plaintiffs; or from unfairly competing with plaintiffs by trading off plaintiffs’ business reputation and goodwill, and by diluting plaintiffs’ distinctive L’AIR DU TEMPS and L’AIR marks.

The test of whether a party is entitled to the extraordinary relief of a preliminary injunction is well established in this Circuit. In order “[t]o obtain a preliminary injunction, a plaintiff must ordinarily show ‘(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.’ ” Stewart v. INS, 762 F.2d 193, 198-99 (2d Cir.1985) {quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979)). As the quoted standard indicates, a showing of irreparable harm is a requisite element for obtaining a preliminary injunction under either prong of the standard—it is “an absolute requirement for an award of injunctive relief.” Stewart, at 199; see also Buckingham Corp. v. Karp, 762 F.2d 257, 262 (2d Cir.1985) (“The linchpin of such interim relief is that threatened irreparable harm will be prevented by that injunction.”); Triebwasser & Katz v. American Telephone & Telegraph Co., 535 F.2d 1356, 1359 (2d Cir.1976); Sugarhill Records Ltd. v. Motown Record Corp., 570 F.Supp. 1217, 1219 (S.D.N.Y.1983). The Court finds that plaintiffs in this case have not made a sufficient showing of irreparable harm to justify injunctive relief.

Plaintiffs correctly argue that a showing that there is a substantial likelihood of confusion between the marks or the products constitutes a sufficient showing of irreparable harm to justify injunctive relief in a trademark infringement case. See In re Vuitton et Fils, S.A., 606 F.2d 1, 4 (2d Cir.1979). Plaintiffs must also show that this likelihood of confusion exists in order to demonstrate their likelihood of success on the merits of their federal claim, see Spring Mills, Inc. v. Ultracashmere House, Ltd., 689 F.2d 1127, 1129 (2d Cir.1982), and their state anti-dilution, claim, see Beneficial Corp. v. Beneficial Capital Corp., 529 F.Supp. 445, 451-52 (S.D.N.Y.1982). The test of whether there is a likelihood of confusion is whether “an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the source of the goods in question.” Spring Mills, Inc., 689 F.2d at 1129 (quoting Mushroom Makers, Inc. v. R. G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978), cert. denied, 439 U.S. 1116, 99 S. Ct. 1022, 59 L.Ed.2d 75 (1979)). Several factors should be considered when assessing the likelihood that ordinarily prudent purchasers will be confused, including

the strength of [the prior user’s] mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, ... the reciprocal of defendant’s good faith in adopting its own mark, the quality of defendant’s product, and the sophistication of the buyers.

Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). The so-called Polaroid factors are not, however, exclusive, nor were they ever intended to be exclusive. See Polar oid, 287 F.2d at 495 (“Even this extensive catalogue does not exhaust the possibilities—the court may have to take still other variables into account.”). Other factors which have been applied, and which are applicable here, are the senior user’s delay in asserting its claim, see Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531, 535-36 (2d Cir.1964); cf. Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir.1985) (delay in seeking preliminary injunction demonstrated want of irreparable harm; no analysis of likelihood of confusion), and the balance of the conflicting interests of the two users, see McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1140 (2d Cir.1979); Chandon Champagne Corp., 335 F.2d at 535-36.

No single factor is determinative. Each of the factors must be considered independently and in the context of all the other factors. See, e.g., Plus Products v. Plus Discount Foods, Inc., 722 F.2d 999, 1004 (2d Cir.1983); Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., 411 F.2d 1097, 1099 (2d Cir.1969). While the determination based on the required balancing of all the factors “often depends on the similarity of the marks and the proximity of the products,” Vitarroz, 644 F.2d at 966, no talismanic formula exists for balancing the relevant factors. The facts of each case must be weighed. The Court recognizes that with this balancing of factors “few answers will be written ‘in black and white. The grays are dominant and even among them the shades are innumerable.’ ” Burger King Corp. v. Rudzewicz, — U.S. -, - n. 29, 105 S.Ct. 2174, 2189 n. 29, 85 L.Ed.2d 528 (1985) (quoting Kulko v. Superior Court of California, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978)).

At the outset, it is important in this case to determine what marks are being compared. Plaintiffs contend that L’air D’or infringes their rights in L’Air du Temps, L’Air (standing alone), and Les Colombes d’Or.

Plaintiffs have not obtained a federal trademark registration for Les Colombes d’Or. Thus, secondary meaning must be demonstrated before plaintiffs can invoke the protection of the federal trademark laws. Vibrant Sales, Inc. v. New Body Boutique, Inc., 652 F.2d 299, 303 (2d Cir.1981). Plaintiffs have not demonstrated that any consumer associates Les Colombes d’Or with goods emanating from a particular source. Indeed, plaintiffs have not shown any consumer-directed use of the term “Les Colombes d’Or.” Thus, plaintiffs have failed to demonstrate that Les Colombes d’Or has a secondary meaning. Furthermore, defendants have demonstrated that their use of L’air D’or predated plaintiffs’ public use of Les Colombes d’Or. Accordingly, for the purpose of determining plaintiffs’ entitlement to interim relief, plaintiffs have not demonstrated a protectible trademark interest in Les Colombes d’Or. Moreover, since there has been absolutely no showing that any consumers have heard this term, there is no possibility (let alone probability) that an appreciable number of consumers will be confused regarding it.

Plaintiffs also have not obtained a federal trademark registration for L’Air. Their registration of L’Air du Temps provides protection against another’s confusing use of component parts of that trademark; however, it does not, without a showing of secondary meaning for a particular component part, provide full trademark protection for that part alone. See Beneficial Corp., 529 F.Supp. at 447 n. 1. Plaintiffs have not shown any consumer-directed use of L’Air, alone, to identify the L’Air du Temps products. Plaintiffs have used the words “L’Air” in conjunction with other words in catchy promotions (e.g., “L’Air Luxury Pair”); however, in each such instance, the full trademark L’Air du Temps was listed in the promotion or advertisement describing the fragrance product itself and the words “L’Air” were used only as part of the promotional slogan. Moreover, in light of the conflicting evidence presented as to whether consumers recognize, or refer to, the L’Air du Temps products simply as L’Air, plaintiffs have not sufficiently demonstrated, at this point, that the words L’Air have a secondary meaning identifying their L’Air du Temps products. Accordingly, for the purpose of determining plaintiffs’ entitlement to interim relief, there is insufficient evidence of trademark use and secondary meaning to demonstrate a protectible trademark interest in L’Air, standing alone. Cf. United Rum Merchants Ltd. v. Fregal, Inc., 216 U.S.P.Q. 217, 219 n. 5 (1982) (eschewing analysis of claimed rights to “TIA” as a separate mark for holder of trademark rights to “TIA MARIA” in opposition proceeding regarding registration of “TIA LOLA”).

Thus, the question in this case is whether an appreciable number of consumers are likely to be confused between L’Air du Temps products and L’air D’or products, or as to the source of either. The Court finds that this is a close question. Nonetheless, applying the criteria set out above, the Court on balance finds that the plaintiffs have not shown that confusion is likely, or at least not likely enough to satisfy the Court that irreparable harm will result in the absence of interim relief.

1. Similarity of the Marks.

The two marks involved are similar, but certainly not identical. Both marks are in French. Both marks feature L’Air as their first words. Both marks are written in similar script (although plaintiffs’ script does appear to be more of an italic script while defendants’ script appears to be more of a stylized cursive script, see Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons, 523 F.2d 1331, 1339 (2d Cir.1975) (appropriate to consider differences in typeface of two marks)). There the similarities end.

The full marks present different overall impressions. L’Air du Temps is a French idiom, difficult to pin down as to its specific meaning. Likewise, the expression, and therefore the mark, conveys an airy, elusive, mellifluous image. L’air D’or is a more compact, readily definable expression. This mark conveys a solid, regal image.

The marks are mere words, but they must be viewed in the context of how they are presented to fully assay their similarity. See Vitarroz, 644 F.2d at 968; see also Plus Products, 722 F.2d at 1007 (comparing make-up of logos). Plaintiffs’ mark is set off by quotation marks, but in all other respects is presented simply in words. See Illustration 1. Defendants’ mark is presented in a logo—the words are bordered above and below by lines, forming a band which is set in a circle. See Illustration 2. The capitalization of letters in the marks also differs.

The marks should also be viewed in the context of the products’ packaging. See Plus Products, 722 F.2d at 1007; Lever Bros. Co. v. American Bakeries Co., 693 F.2d 251, 257 (2d Cir.1982). The packaging is quite distinct. Plaintiffs’ products are packaged in pale yellow boxes and wrappings with gold lettering (in a few cases, the packaging is gold). Defendants’ products are packaged in burgundy boxes and wrappings with white lettering (in some instances the lettering is gold). Plaintiffs’ perfume is housed in a pale yellow cardboard carton; defendants’ in a burgundy velvet vault-like carton. Finally, plaintiffs’ perfume is bottled in a unique, distinctive Lalique crystal flacón, with doves perched atop the cover. Defendants’ perfume is bottled in a simple decanter. *

Moreover, plaintiffs nearly always use their well-known trade name Nina Ricci in their presentation and packaging of L’Air du Temps products. This further lessens the likelihood that confusion will follow from these similar marks. See McGregor-Doniger Inc., 599 F.2d at 1134.

In sum, while the marks are somewhat similar, the impact of that similarity is substantially diminished by the overall impression the marks make, especially when viewed in context. Thus, this factor weighs only slightly in plaintiffs’ favor.

2. Strength of the Mark.

The strength of the mark is a measure of its distinctiveness, of its “tendency to identify the goods sold under the mark as emanating from a particular ... source.” McGregor-Doniger, Inc., 599 F.2d at 1131. Marks are generally classified into four groups representing their distinctiveness—generic, descriptive, suggestive, and arbitrary or fanciful. See, e.g., Plus Products, 722 F.2d at 1005; Lever Bros. Co., 693 F.2d at 256. A generic mark, afforded no trademark protection, is one “that refers, or has come to be understood as referring, to the genus of which the particular product is a species,” Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir.1976), e.g., thermos. A descriptive mark, entitled to some protection generally, is one that “forthwith conveys an immediate idea of the ingredients, qualities or characteristics of the goods.” Stix Products, Inc. v. United Merchants & Mfrs., 295 F.Supp. 479, 488 (S.D.N.Y.1968). A suggestive mark, generally entitled to somewhat more protection than a descriptive mark, is one which “requires imagination, thought and perception to reach a conclusion as to the nature of the goods.” Id. Finally, an arbitrary or fanciful mark, generally entitled to the greatest amount of protection, is one that in no way describes the nature of the products—either because it is a coined (or fanciful) name, e.g., Exxon, or because it is a common word used in an unfamiliar (or arbitrary) way, e.g., “Ivory” to refer to soap. See Abercrombie & Fitch Co., 537 F.2d at 9, 11. Classification alone, however, does not necessarily determine the level of protection a mark is entitled to, since it is entirely possible for a suggestive mark, and even for an arbitrary mark, to be weak and deserving of little protection. See, e.g., Plus Products, 722 F.2d 999 (“Plus” a suggestive but weak mark); Lever Bros. Co., 693 F.2d 251 (“Autumn” an arbitrary, but weak, mark as to margarine); DuPont Cellophane Co. v. Waxed Products Co., 85 F.2d 75 (2d Cir.), cert. denied, 299 U.S. 601, 57 S.Ct. 194, 81 L.Ed. 443 (1936) (“cellophane,” originally a coined name, became at best a weak descriptive mark as consumers recognized the name as describing the product).

The strength of a mark is also often ascertained by looking at the extent of advertising invested in it, and by the volume of sales of the product. See Beneficial Corp., 529 F.Supp. at 449.

L’Air du Temps is a suggestive mark for perfume and other fragrance products. Cf Estee Lauder, Inc. v. Cinnabar 2000 Haircutters, Inc., 218 U.S.P.Q. 191 (S.D.N.Y.1982) (“Cinnabar” a suggestive mark for fragrances). Moreover, L’Air du Temps is advertised extensively and sells very well. Accordingly, I find that it is a fairly strong mark. The strength of the L’Air du Temps mark, however, is diminished somewhat in that the element it shares with the allegedly infringing mark, L’Air, is particularly appropriate for fragrances, and is, to that extent a weak suggestive mark. See Chandon Champagne Corp., 335 F.2d at 536 (“Perignon” weak mark for champagne). In sum, I find that this factor weighs slightly in plaintiffs’ favor.

3. Similarity of the Products.

Obviously, the products involved are similar. Plaintiffs market expensive, high quality perfume and other toiletries and fragrance products, under the L’Air du Temps trademark. Defendants market expensive, high quality perfume, and hope to market other toiletries and fragrance products, under the L’air D’or trademark. The impact of this similarity, however, is diminished significantly by two dissimilarities: price and a particular ingredient.

Both perfumes are expensive, but the difference in price is substantial. One ounce of the junior user’s perfume, L’air D’or, sells for $275, roughly 175% of the price of one ounce of L’Air du Temps, which sells for $160. The difference in price is less dramatic in the smaller size; however, it is still substantial. One-quarter ounce of L’air D’or sells for $95, roughly 160% of the price of one-quarter ounce of L’Air du Temps, which sells for $60.

More significantly, the products themselves are readily distinguishable because of the presence of 23 carat gold flakes in L’air D’or. This ingredient makes L’air D’or perfume a unique product and has led to a great deal of media attention and consumer fascination. Moreover, defendants have consistently tried to present their product as a hybrid of jewelry and fragrance. Thus, although it would appear that L’air D’or will succeed, if at all, as a perfume, and not as an item of jewelry or as some hybrid between the two, it is clear that the products are readily distinguishable. Accordingly, I find that this factor weighs only slightly in plaintiffs’ favor.

4. Bridging the Gap.

Insofar as the products are different, there is no evidence that plaintiffs have any intention of bridging the gap into what might be considered unconventional, or gimmicky, fragrance products by infusing precious metals into their highly successful perfume. Thus, to the limited extent that this factor is relevant at all to the determination at hand, it weighs in defendants’ favor.

5. Actual Confusion.

Plaintiffs did not submit any credible evidence of actual consumer confusion. One of plaintiffs’ witnesses, a L’Air du Temps salesperson, surmised that some consumers had been confused between the new L’air D’or and the old L’Air du Temps based on questions they had asked as to whether the L’Air du Temps product they had just sampled was a new product. Given the extreme sketchiness of the testimony, however, the Court does not feel it would be justified in concluding that actual consumer confusion was demonstrated. The Court does recognize that it is difficult to demonstrate actual confusion on the part of retail customers. See Plus Products, 722 F.2d at 1006; see also W.E. Bassett Co. v. Revlon, Inc., 435 F.2d 656, 662 (2d Cir.1970). The Court also recognizes that plaintiffs’ task in proving actual confusion is all the more difficult because defendants’ product has been on the market for a relatively short period of time. Compare Plus Products, 722 F.2d at 1006 (inability to show actual confusion in face of three years of substantial sales by junior user strong indication that confusion unlikely). Accordingly, the Court finds that the absence of actual customer confusion weighs only slightly in defendants’ favor.

6. Quality of Defendants’ Product.

L’air D’or is an expensive, apparently high-quality product. Plaintiffs even state that “[t]he quality of defendants’ products is not an issue here.” Plaintiffs speculate, however, that irrespective of the quality of L’air D’or, because its aroma is different from that of L’Air du Temps, it will damage the L’Air du Temps reputation. The Court is unpersuaded that persons sufficiently familiar with L’Air du Temps to recognize its distinctive aroma could mistakenly purchase or use L’air D’or believing it to be the same product. As to any other customers purchasing L’air D’or, its high quality will in no improper way harm the reputation of plaintiffs’ mark. See Lever Bros. Co., 693 F.2d at 258. Accordingly, I find that this factor weighs in defendants’ favor.

7. Defendants’ Good Faith.

Plaintiffs urge the Court to find that defendants acted in bad faith in choosing the L’air D’or name, intending to trade off the L’Air du Temps name. Plaintiffs argue that such a finding is indicated in this case drawing inferences from the popularity of the L’Air du Temps trademark, from the use of parts of both L’Air du Temps and Les Colombes d’Or, and from the failure of defendants to do a trademark search, or to seek the advice of counsel, in the United States prior to selecting the name.

Defendants have demonstrated persuasively that the choice of L’air D’or as the name for their product was made long before plaintiffs made any public utilization of the term Les Colombes d’Or, and was made without any knowledge whatsoever of that term. Moreover, as discussed above, plaintiffs have not shown any consumer-directed use, or any consumer recognition, of the term Les Colombes d’Or. Defendants would have nothing to gain from borrowing a term from plaintiffs if no one would recognize the origin of that term. Thus, the Court finds plaintiffs’ argument that the combination of L’air and D’or in the same mark represents an intentional effort to purloin two of plaintiffs’ valuable and distinctive marks to be a specious one. The presence of the words “D’or” in defendants’ mark in no way supports a finding of bad faith on the part of defendants.

Defendants also presented credible evidence that when they had narrowed their choice of names to two with similar meanings (albeit with very different impacts)— Essence of Gold and L’air D’or—they did seek the advice of Canadian counsel and did have a trademark search performed in Canada. Plaintiffs’ mark is used in Canada. The Canadian search uncovered and counsel’s advice dealt with the presence of the L’Air du Temps mark in the marketplace. While it may have been wiser and more cautious for defendants to do the same in this country as well, there is no reason to find that that was necessary or to infer gross negligence or bad faith from defendants’ failure to do so.

Defendants’ ultimate decision to use the name L’air D’or, rather than Essence of Gold, comported with the advice they had received from their Canadian counsel, and demonstrates that their “process of decision was reasoned and in good faith.” See Lever Bros. Co., 693 F.2d at 258 (quoting district court opinion below, 537 F.Supp. 248, 256). Furthermore, defendants’ efforts to market their product as a hybrid jewelry/fragrance product, in contradistinction to a simple fragrance product, demonstrates that they did not intend to improperly trade off of the reputation of plaintiffs’ mark. Finally, and most persuasive to the Court, defendants’ choice of name is entirely apropos for the product. Thus, the Court finds that defendants’ choice of name was made in good faith. Accordingly, this factor weighs in defendants’ favor.

8. Sophistication of the Buyer.

There are apparently two classes of consumers who commonly purchase expensive perfumes—women who use the product and men who give the product as gifts. Women who use expensive perfumes are discriminating and sophisticated consumers. They know their perfume. Plaintiffs recognize this: indeed, they argue that women users of L’Air du Temps are familiar enough with the fragrance and discriminating enough to notice the difference of the aroma of L’air D’or should they mistakenly use that product. The Court agrees; however, given the sophistication of these consumers, the Court finds it highly unlikely that these consumers will confuse the two products or mistakenly use L’air D’or. See Plus Products, 722 F.2d at 1007.

Men who purchase expensive perfumes as gifts are somewhat less discriminating. Plaintiff’s posit the typical male purchaser as awkward, uncomfortable, and anxious to buy and run. Insofar as the male purchaser posited is an impulse purchaser, the likelihood that these less-sophisticated consumers will be confused is diminished somewhat by the obvious differences in the overall appearance of the products and their packaging. See Beech-Nut, Inc. v. Warner-Lambert Co., 480 F.2d 801, 804 (2d Cir.1973). Nonetheless, the male purchaser is less sophisticated in the area of perfumes than his female counterpart, and therefore somewhat more likely to be confused.

In sum, the Court finds that there are two relevant consumer groups—one of which is very sophisticated and unlikely to be confused, the other of which is less sophisticated and more likely to be confused. On balance I find that this factor weighs only slightly in defendant’s favor.

9. Plaintiffs’ Delay in Asserting Claim.

Plaintiffs became aware of defendants’ product no later than mid-November, 1984. On December 13, 1984, plaintiffs sent a cease and desist letter to Alcourt, Gem-craft, and Bloomingdale’s claiming infringement and demanding that defendants’ products not be sold under the name “L’air D’or.” On December 27,1984, plaintiffs sent a similar letter to Jay tab. Counsel for both sides conferred in an attempt to resolve the dispute without resort to the courts. Apparently, counsel had four telephonic conversations between January 16, 1985, and February 1, 1985. The discussions were fruitless and all settlement talks broke down. Plaintiffs did not file this action or seek injunctive relief until March 15, 1985.

Defendants, relying on Citibank, N.A., 756 F.2d 273, argue that plaintiffs’ delay in seeking injunctive relief is sufficient evidence that they are not suffering irreparable harm. Citibank, N.A. involved the availability of a preliminary injunction in a trademark infringement action over the use of the name “Citytrust” in New York State. Citibank sought to enjoin Citytrust, a Connecticut bank, from opening banks in New York under the name “Citytrust.” Citibank, however, did not seek the injunction until “more than ten weeks after it learned directly of Citytrust’s plans, and more than nine months after it received notice through the press” of those plans. 756 F.2d at 276. The Second Circuit, relying on this delay, as well as two other significant facts, held that Citibank had made an insufficient showing of irreparable harm to justify the entry of a preliminary injunction.

The instant case is distinguishable. The additional facts relied on by the court in Citibank, N.A. showed that Citibank was able to co-exist with Citytrust: indeed, Citibank had voluntarily entered Citytrust’s “territory”—Connecticut—and operated there without claim of irreparable injury for six years. There are no such additional facts present here. Moreover, conspicuously absent from Citibank, N.A. is any evidence that the delay in seeking judicial relief resulted, even in part, from the parties’ extra-judicial efforts to resolve the dispute prior to resorting to the courts. Here, plaintiffs sent cease and desist letters to defendants within four to six weeks after they learned of the alleged infringement, and attempted thereby to obviate the need for judicial intervention in resolving the dispute. Such efforts are to be encouraged. Accordingly, defendants’ argument that plaintiffs waited some sixteen weeks before seeking relief from this Court, while technically accurate, is misguided. Plaintiffs inexplicably delayed approximately six weeks from the breakdown of the settlement talks before they sought relief from this Court. That delay, alone, however, would not suffice to support a finding of no irreparable harm.

Nonetheless, the Court does feel that plaintiffs’ inexplicable delay, coupled with their seeming lack of interest in defendants’ product, during very busy selling seasons is evidence that limited harm is present and that there is little likelihood of confusion in the marketplace. During the Christmas season, the most active period of the year in retail sales of perfume, plaintiffs objected to defendants’ product through one cease and desist letter. No representative of plaintiffs visited any of the stores selling L’air D’or to investigate the rival, allegedly infringing product. There was no effort made to verify the location of the new product or to ascertain whether any actual confusion was occurring. This hardly evinces the tenacity with which one would expect an irreparably injured party to press its claims during its busiest season. Then, after settlement talks ended without success, plaintiffs delayed another six weeks—through the Valentine’s Day period, another high volume sales period for perfume—before seeking this relief.

The Court finds that plaintiffs’ delay in seeking relief and their nonchalant reaction to the presence of L’air D’or in the marketplace indicate that even plaintiffs felt there was little real likelihood that consumers would be confused between the products. Accordingly, this factor weighs in defendants’ favor.

10. Balancing of Conflicting Interests.

Defendants demonstrated at the hearing held herein that the entry of a preliminary injunction against the use of the name “L’air D’or” would cause dire consequences for them. Defendants could not adapt the packaging already completed, or well along the way to completion, to reflect a different name for the product without incurring tremendous expense—an amount which in and of itself could potentially bankrupt the endeavor and destroy the product. The alternative for defendants, in the face of an injunction, would be to hold all U.S. sales in abeyance pending the final outcome of this litigation. Such a delay during the product’s incipiency would surely spell the product’s doom. Accordingly, defendants’ interest in the continued use of the name they chose in good faith is a strong one.

Balanced against this interest, plaintiffs have not adequately demonstrated that the absence of interim relief would preclude “the unimpaired continuation of their trade mark use.” Avon Shoe Co. v. David Crystal, Inc., 279 F.2d 607, 613 (2d Cir.), cert. denied, 364 U.S. 909, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960). Plaintiffs have not sufficiently demonstrated that consumer confusion is likely; therefore, their strong reputation would appear safe. See McGregor-Doniger Inc., 599 F.2d at 1139. Likewise, in light of the improbability that plaintiffs would market a similar product, perfume infused with non-functional precious metals, as a part of the L’Air du Temps line, plaintiffs’ freedom of expansion has not been unduly restricted. Id. On balance, defendants’ interest in the continued use of their trademark outweighs plaintiffs’ interests in precluding that use and in the continued use of their own trademark, which this Court finds remains unimpaired. Accordingly, this factor weighs in defendants’ favor.

CONCLUSION

The Court has thus reviewed all of the relevant factors bearing on the likelihood that an appreciable number of consumers will be confused between the products, or as to the source of either. Based on that analysis, the Court finds that plaintiffs have not demonstrated that a likelihood of confusion exists. Accordingly, plaintiffs cannot avail themselves of the “presumption” of irreparable harm in this case. Compare In re Vuitton, 606 F.2d 1; Omega Importing Corp v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir.1971). The Court finds that plaintiffs’ other arguments regarding irreparable harm are without merit. Each depends upon improper consumer confusion. Since the plaintiffs have not shown that such confusion is likely, the Court finds that plaintiffs’ reputation and goodwill are secure during the pendency of this action, and therefore that there is no irreparable harm here which would justify the imposition of the relief requested. Likewise, by failing to demonstrate likelihood of confusion, plaintiffs have failed to demonstrate likely success on their state and federal claims.

To paraphrase a former member of this Court, “where the key word[s] [are] free as [‘L’]air[’], small variations are likely to make enough of a difference to ward off charges of infringement.” Beech-Nut, Inc. v. Warner-Lambert Co., 346 F.Supp. 547 at 549 (1972). Plaintiffs have failed to meet their burden of proof with respect to the requirements for obtaining a preliminary injunction. Accordingly, their motion for a preliminary injunction is DENIED. The parties are to proceed with discovery forthwith with an eye to an expedited trial on the merits of this action.

SO ORDERED.

      . "L'Air du Temps” has been defined, literally, as "the air of time,” and idiomatically as "timelessness,” "in the air," or “of the moment." (See Transcript., p. 37; Defendants' Memorandum of Law, p. 29.)

      . "Les Colombes d’Or” means "the doves of gold."

      . “L’air D’or” means "the air of gold” or "the essence of gold.”

      . Although the Polaroid factors were initially designed to decry likelihood of confusion between non-competing goods, they have been applied to determine whether there is a likelihood of confusion between competing goods as well. See American Int'l Group, Inc. v. London American Inti Corp., 664 F.2d 348, 351 (2d Cir.1981); Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 965-67 (2d Cir.1981).

      . This determination, of course, does not preclude plaintiffs from ultimately establishing some trademark rights to the term “L’Air,” standing alone. The Court notes, however, that insofar as plaintiffs claim an interest in L’Air as a separate mark, the Court feels that that mark is an appropriate, but weak, one for perfumes. See Chandon Champagne Corp., 335 F.2d at 536 (Perignon weak mark for champagne because it is appropriate as an historic reference to the putative inventor of that exquisite potable). The Court’s belief that L'Air is an appropriate mark for perfume is confirmed by the advertisement submitted by plaintiffs (Exhibit A to Affidavit of Ruth Dimenstein). Macy’s apparently made an independent determination that perfume gives the wearer a certain "air.”

      . See footnote page 3, supra.

      . The likelihood that consumers will be confused is especially diminished when the trade name which always appears with one of the marks is one as independently strong as the Nina Ricci mark is. See E.T.F. Enters., Inc. v. Nina Ricci, S.A.R.L., 523 F.Supp. 1147, 1154 (S.D.N.Y.1981) (discussing strength of Nina Ricci mark).

      . It is too early to tell whether the gimmicky flakes of gold will make L’air D’or a truly saleable item or the quintessential "flash in the pan."

      . The Court is more troubled about the similarities which may exist when, and if, defendants expand their product line. Presumably, such new products that defendants may market will not contain the distinguishing pure gold flakes. At this point, however, there is insufficient ripe evidence before the Court regarding products not yet marketed to justify imposing a preliminary injunction against the use of the name "L’air D’or" for them.

      . The Court recognizes that the standard of infringement may be different under Canadian law (see Defendants’ Exhibit 12, p. 2) ("The test in determining whether or not confusion will exist is the test of an ordinary consumer for the product having imperfect recollection.”); nonetheless, the Court feels that this difference is not substantial enough to indicate that defendants’ failure to search its mark and to obtain counsel’s advice in the United States was in bad faith.

      . See Beneficial Corp., 529 F.Supp. at 451-52 (state anti-dilution law requires either likelihood of confusion or bad faith; neither demonstrated here).

      . The Court's discussion of the balance of conflicting interests above also indicates that plaintiffs have not demonstrated a balance of hardship tipping decidedly in their favor.


source: Caselaw Access Project

author: CANNELLA, Senior District Judge:

license: Public Domain

text:
    BANK OF COCHIN LIMITED, Plaintiff, v. MANUFACTURERS HANOVER TRUST COMPANY and St. Lucia Enterprises, Ltd., Defendants.
    No. 83 Civ. 1767 (JMC).
    United States District Court, S.D. New York.
    July 9, 1985.
    Dunn & Zuckerman, New York City (Jeffrey L. Feldman, New York City, of counsel), for plaintiff.
    Manufacturers Hanover Trust Co., New York City (Robert N. Rosenblith, New York City, of counsel), for defendants.
   MEMORANDUM DECISION

CANNELLA, Senior District Judge:

Plaintiff’s motion for summary judgment is denied. Fed.R.Civ.P. 56(a).

Defendant’s motion for summary judgment is granted. Fed.R.Civ.P. 56(b).

FACTS

Bank of Cochin Limited [“Cochin”], an Indian corporation and the issuer of letter of credit BB/VN/41/80, commenced this diversity action against Manufacturers Hanover Trust Company [“MHT”], a New York corporation that acted as the confirming bank on the letter. Cochin seeks recovery of the amount paid by MHT, thereafter debited to Cochin's account at MHT, on drawings negotiated in New York between MHT and St. Lucia Enterprises, Ltd. [“St. Lucia”]. Codefendant St. Lucia, a purported New York corporation and the letter of credit beneficiary, has perpetrated a large fraud on both banks and nonparty customer Vishwa Niryat (Pvt.) Ltd. [“Vishwa”]. Unfortunately, St. Lucia has vanished and the Court must decide whose shoulders will bear the scam.

The parties agree on the salient events and have presented essentially identical and uncontroverted statements of fact pursuant to Rule 3(g) of the Civil Rules for the Southern District of New York. See San Filippo v. U.S. Trust Co., 737 F.2d 246, 248 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985). On February 8, 1980, in Bombay, India, Vishwa requested Cochin to issue an irrevocable letter of credit covering up to $798,-000 for the benefit of St. Lucia. The letter was to have expired on April 15, 1980 and covered the anticipated shipment and purchase of 1,000 metric tons of aluminum melting scrap consisting of aluminum beverage cans.

On February 14, 1980, Cochin requested MHT to supply financial information on St. Lucia. MHT responded by telex the following day that St. Lucia did not maintain an MHT account and that a thorough check of normal credit sources did not reveal any “pertinent” information. On February 22, Cochin conveyed the terms and conditions of the letter of credit to MHT by Telex and requested MHT to advise “St Lucia Enterprises Ltd” of the establishment of the letter and to add MHT’s confirmation. The letter of credit was issued subject to the Uniform Customs and Practice for Documentary Credits (1974 Revision), Int’l Chamber of Commerce, Pub. No. 290 [“UCP”].

On February 25, MHT mailed its written advice of the letter of credit establishment to St. Lucia and confirmed the amended letter on February 29. Cochin amended certain terms of the letter on four occasions in March and April 1980. MHT mailed its advices of these amendments to St. Lucia from March to May and sent copies to Cochin, which were received without comment. The final amended letter of credit contained the following relevant terms and conditions:

a. Sight drafts of the invoice values;
b. Six copies of the signed invoices;
c. One set of clean shipped on board bills of lading;
d. A west European certificate of origin;
e. A certificate of analysis of the aluminum scrap from Lloyd’s of London [“Lloyd’s”] or another international testings agency;
f. Shipment from a west European port to Bombay;
g. A maritime insurance policy, cover-note 429711, to be confirmed by St. Lucia’s cable to Oriental Fire and General Insurance Co. [“Oriental”];
h. A packing list in triplicate;
i. One set of nonnegotiable documents to be sent to Vishwa and a confirming cable to Vishwa;
j. A certification from Lloyd’s or the shipping company that the ship was a first class or approved non-Pakistani vessel;
k. St. Lucia’s certification that it had complied with all terms of the letter of credit;
l. Shipment by May 31, 1980; and
m. Letter of credit expiration on June 15, 1980.

The aluminum was allegedly shipped on May 29, 1980 from Bremen, West Germany to Bombay on the M/V Betelguese. On June 2, St. Lucia established an account at a Manhattan office of Citibank, N.A. [“Citibank”], the collecting bank, in the name of St. Lucia Enterprises, Ltd. On June 9, St. Lucia presented MHT with documents required by the letter of credit and ten sight drafts amounting to $796,603.50, payable to St. Lucia Enterprises. The documents included five copies of the invoices, a clean shipped on board bill of lading, a St. Lucia certification that the aluminum was of west European origin, a certificate of analysis by an international Dutch materials testing agent, a telex confirmation of a telephone message to Oriental that the aluminum had been shipped to Bombay pursuant to cover-note 4291, a packing list in triplicate, a St. Lucia certification that one set of nonnegotiable documents had been sent to Vishwa and that Vishwa had been advised by cable, certifications from the shipping company that the M/V Betelguese was an approved first class Panamanian vessel, and a St. Lucia cover letter specifying the documents submitted and requesting payment from MHT. The St. Lucia letter and certifications were on the letterhead of “St. Lucia Enterprises” and were signed by “D Agney”.

MHT compared the documents against the requirements of the letter and determined that they complied with all the terms and conditions. On June 13, MHT negotiated the drafts and issued a check for $798,-000 payable to St. Lucia Enterprises. The check was indorsed St. Lucia Enterprises Ltd. and was deposited in the Citibank account on June 17, 1980. Citibank collected the check from MHT through normal banking channels. MHT debited Cochin’s account for $798,000 on June 13. MHT sent a copy of its payment advice, the drafts and documents to Cochin by registered air mail on June 13. Unfortunately, Cochin apparently did not receive these documents until June 21. As it turned out, St. Lucia shipped nothing to Vishwa. The documentation submitted to MHT was fraudulent in every regard; indeed, the bills of lading, quality certification and vessel certification were issued by nonexistent corporations. St. Lucia received payment on the letter of credit and Cochin has been unable to locate any party connected with the fraudulent scheme.

Cochin sent a telex to MHT on June 18, inquiring whether St. Lucia had presented documents for negotiation. MHT responded by telex on June 20 that it had paid St. Lucia $798,000 on June 13 and had forwarded the documents to Cochin at that time. On June 21, Cochin sent the following telex to MHT:

We acknowledge receipt of the documenta [sic] Stop We find certain discrepeneies [sic] in the same Stop kindly donot [sic] make payment against the same until we telex you otherwise Stop.

On June 23, MHT replied to Cochin’s telex as follows:

Reference your telex June 21 credit BB VN 4180 our 500748 Stop We note your telex fails to give reason fro [sic] rejection documents as required UCP Article 8 Stop According our records documents fully complied credit terms and beneficiary already paid therefore we cannot accept your refusal of documents.

By telex dated June 27, Cochin informed MHT of alleged defects in the documents apparently uncovered by Vishwa: (1) St. Lucia’s cable to Oriental showed the wrong insurance covernote number of 4291 instead of 429711; (2) St. Lucia did not submit “proof” that a set of nonnegotiable documents and confirming cable had been sent to Vishwa; (3) only one set of documents showed the original certificate of origin whereas the rest included only photocopies; and (4) the invoice packing list and certificate of origin were not duly authenticated. Cochin also noted (5) the overpayment of $1,396.50. MHT credited Cochin’s account for $1,396.50 and notified Cochin by telex on June 30.

By telex dated July 3, Cochin asked MHT to recredit its account for $796,603.50 and advised MHT that it was returning the letter of credit documents. Cochin also cited an additional discrepancy that (6) MHT had negotiated documents for St. Lucia Enterprises but that the letter of credit was established for St. Lucia Enterprises Ltd. On July 4, Cochin informed MHT by telex that the documents negotiated by MHT contained the following additional defects: (7) only five signed copies of the commercial invoices, rather than six, were forwarded and (8) documents were signed by “D Agney” without specifying his capacity at St. Lucia.

MHT responded by telex of July 14 that Cochin had failed to timely and properly specify the alleged documentary variances as required by article 8 of the 1974 UCP. The telex also noted that Cochin had failed to promptly return the documents or advise MHT that Cochin was holding the documents at MHT’s disposal as required by the UCP. MHT asserted in a telex dated July 16 that it still had not received certain documents from Cochin. The parties exchanged additional telexes confirming and denying that payment was proper. Cochin’s Rule 3(g) statement adds the additional allegations that (9) St. Lucia failed to indicate the documents submitted in drawing against the letter of credit, and (10) the shipping company certificate fails to indicate the vessel registration number.

DISCUSSION

Letter of credit liability cases are particularly appropriate for judicial resolution without trial because they present solely legal issues. See Dulien Steel Prods., Inc. v. Bankers Trust Co., 298 F.2d 836, 837 (2d Cir.1962); Transamerica Delaval Inc. v. Citibank, N.A., 545 F.Supp. 200, 203 (S.D.N.Y.1982). The parties do not dispute the essential facts and agreed in pretrial conference to present joint summary judgment motions. This case raises novel and unsettled issues of letter of credit law concerning confirming bank liability to an issuing bank for wrongful honor of a letter of credit. The law, however, is sufficiently chartered to require summary judgment for MHT.

A letter of credit is a financing mechanism designed to allocate commercial credit risks whereby a bank or other issuer pays an amount of money to a beneficiary upon presentment of documents complying with specified conditions set forth in the letter. The beneficiary, typically the seller of goods to a buyer-customer, uses the letter to substitute the credit of the issuer for the credit of its customer. The customer applies for the letter of credit, specifies the terms of the letter and promises to reimburse the issuer upon honor of the beneficiary’s draft. The letter of credit is thus an engagement by the issuer to the beneficiary to cover the customer’s agreement to pay money under the customer-beneficiary contract. The reliability and fluidity of the letter of credit are maintained because the issuing bank is concerned exclusively with the documents, not the performance obligations created by the customer-beneficiary contract. Not a contract, the letter of credit has been best described as “a relationship with no perfect analogies but nevertheless a well defined set of rights and obligations.” 1 A. Lowenfeld, International Private Trade § 5.53 at 103 (1977); see B. Kozolchyk, Letters of Credit, in 9 Int’l Encyclopedia of Comparative Law ch. 5 at 137-40 (1979) (negotiable instrument concept).

The central issue presented by this case is whether St. Lucia’s demand for payment from MHT was in compliance with the conditions specified in the letter of credit. Cochin’s action for wrongful honor is based upon its assertion that MHT’s payment was improper because the documents submitted by St. Lucia did not comply with the letter. Neither the UCP nor the Uniform Commercial Code [“UCC”] specify whether a bank honoring a letter of credit should be guided by a standard of strict compliance or substantial compliance with the terms of the letter.

The great weight of authority in this jurisdiction, and elsewhere, holds that an issuing or confirming bank is usually obligated to honor the beneficiary’s draft only when the documents are in strict compliance with the terms of the letter of credit. See H. Harfield, Bank Credits and Acceptances, 73-74 (5th ed. 1974) (a “basic principle” of letter of credit law is that “[t]he beneficiary must strictly comply with the terms of the credit to compel performance by the bank____ ‘There is no room for documents which are almost the same, or which will do just as well’ ”) (quoting Equitable Trust Co. v. Dawson Partners, [1927] 27 Lloyd’s List 49, 52); G. McLaughlin, Commercial Law, N.Y.L.J., May 8, 1985 at 30 n. 18 (strict compliance standard is “[t]he prevailing view in the United States”). Thus, New York courts have traditionally held that letter of credit law requires a beneficiary to strictly comply with the conditions of the letter. See Dixon, Irmaos & Cia, Ltda. v. Chase Nat’l Bank, 144 F.2d 759, 762 (2d Cir.), cert. denied, 324 U.S. 850, 65 S.Ct. 687, 89 L.Ed. 1419 (1944); International Banking Corp. v. Irving Nat’l Bank, 283 F. 103, 105 (2d Cir.1922); North American Mfrs. Export Assocs. v. Chase Nat’l Bank, 77 F.Supp. 55, 55 (S.D.N.Y.1948); Laudisi v. Ameri can Exch. Nat’l Bank, 239 N.Y. 234, 239-40, 146 N.E. 347, 348 (1924); Bank of Italy v. Merchants Nat’l Bank, 236 N.Y. 106, 109-10, 140 N.E. 211, 212 (1923), cert. denied, 264 U.S. 581, 44 S.Ct. 331, 68 L.Ed. 860 (1924). Additionally, this Court has previously held that “[a] bank’s obligation in a letter of credit transaction is defined by the contract between the bank and its customer. It is obliged to pay only if the documents submitted strictly comply with the essential requirements of the letter of credit.” Corporacion de Mercadeo Agricola v. Pan American Fruit & Produce Corp., Memorandum Decision at 4-5, 75 Civ. 1611 (JMC) (S.D.N.Y. Apr. 13, 1976), quoted in Corporación de Mercadeo Agricola v. Mellon Bank, 608 F.2d 43, 48 n. 1 (2d Cir.1979). This principle of strict compliance has been recently reaffirmed by the Second Circuit and the New York Court of Appeals. See Beyene v. Irving Trust Co., 762 F.2d 4, 6 (2d Cir.1985) (“In order to protect the issuing or confirming bank, this absolute duty [of payment to the beneficiary] does not arise unless the terms of the letter have been complied with strictly.”); Voest-Alpine Int’l Corp. v. Chase Manhattan Bank, N.A., 707 F.2d 680, 682 (2d Cir.1983) (“[T]he doctrine of strict compliance with the terms of the letter of credit functions to protect the bank which carries the absolute obligation to pay the beneficiary.”); Marino Indus, v. Chase Manhattan Bank, N.A., 686 F.2d 112, 114 (2d Cir.1982) (“ '[T]he essential requirements of a letter of credit must be strictly complied with by the party entitled to draw against the letter of credit, which means that the papers, documents and shipping descriptions must be as stated in the letter.' ") (quoting Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d 461, 465 (2d Cir.1970)); United Commodities-Greece v. Fidelity Int’l Bank, 64 N.Y.2d 449, 455, 478 N.E.2d 172, 174, 489 N.Y.S.2d 31, 33 (1985) (“New York requires strict compliance with the terms of a letter of credit, rather than the more relaxed standard of substantial compliance.”) (citations omitted).

Courts and commentators have noted, however, that New York appears to maintain a bifurcated standard of compliance. See, e.g., Transamerica Delaval Inc. v. Citibank, N.A., supra, 545 F.Supp. at 203; Far Eastern Textile, Ltd. v. City Nat’l Bank & Trust, 430 F.Supp. 193, 196-97 (S.D.Ohio 1977); J. Dolan, The Law of Letters of Credit, Commercial and Standby Credits, ¶ 9.03[1][a], at 9-22 to -24 (1984); T. Quinn, Uniform Commercial Code Commentary and Law Digest, 115-114[A][8], at S5-22 to -24 (cum.supp. no. 1 1984). This approach calls for a strict compliance standard when the bank is sued by the beneficiary for wrongful dishonor but allows for a substantial compliance test when the bank is sued by the customer for wrongful honor. The stated rationale for the bifurcated standard is that it accords the bank flexibility in reacting to “a crossfire of pressures ... especially in times of falling commodity prices,” J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, § 18-6, at 731-32 (quoting State of N.Y. Law Revision Comm’n, Study of Uniform Commercial Code: Article 5-Documentary Letters of Credit, at 66 (1955), reprinted in 3 State of N.Y. Law Revision Comm’n, Report of the Law Revision Comm’n for 1955, at 1634 [“N.Y. U.C.C. Study"], by limiting the liability burden on the bank, which might otherwise be caught between the “rock of a customer insisting on dishonor for highly technical reasons, and the hard place of a beneficiary threatening to sue for wrongful dishonor.” B. Clark, The Law of Bank Deposits, Collections and Credit Cards, 11 8.5[4], at 8-48 (1981).

MHT correctly asserts that Cochin was its “customer” in this transaction and therefore argues that a substantial compliance standard should be used to test its review of St. Lucia’s documents. Although the ultimate customer, Vishwa, may be barred from a direct action against the confirming bank because of the absence of privity, see Kunglig Jarnvagsstyrelsen v. National City Bank, 20 F.2d 307, 308-09 (2d Cir.) (confirming bank has “relation” with issuing bank, not customer), cert. denied, 275 U.S. 497, 48 S.Ct. 121, 72 L.Ed. 392 (1927); Dulien Steel Prods., Inc. v. Bankers Trust Co., 189 F.Supp. 922, 929 (S.D.N.Y.1960) (same), aff'd, 298 F.2d 836 (2d Cir.1962); Linden v. National City Bank, 12 A.D.2d 69, 70-71, 208 N.Y.S.2d 182, 184 (1960) (same), it is undisputed that MHT owes a duty of care to Cochin, see UCP art. 7 (1974), art. 15 (1983). The question then is whether the bifurcated standard applies in a lawsuit by the issuing bank against the confirming bank.

The bifurcated standard is designed to permit the bank to retain flexibility in dealing with simultaneous customer pressure to reject and beneficiary pressure to accept. This discretion ostensibly preserves the bank’s ministerial function of dealing solely with documents and the insulation of the letter of credit from performance problems. The difficulty with applying a bifurcated substantial compliance standard to actions against a confirming bank is reflected in the realities of commercial transactions. An issuing bank’s good faith discretion is most required when its customer seeks to avoid payment by objecting to inconsequential defects. Although the bank should theoretically take comfort from a substantial compliance test if it honors the beneficiary’s drafts over its customer’s protests, the bank would usually not want to exercise its discretion in favor of the beneficiary for fear that its right to indemnity would be jeopardized or that its customer would break off existing banking relationships. Accordingly, the looser test of compliance does not in practice completely remove the issuer from its position between a rock and a hard place, but has a built-in safety valve against issuer misuse if the documents strictly comply with the letter.

A confirming bank, by contrast, is usually in relatively close geographical proximity with the beneficiary and typically chosen by the beneficiary because of past dealings. Although the confirming bank should not want to injure purposely its relationship with the issuing bank, the confirming bank would usually be somewhat biased in favor of the beneficiary. Additionally, the confirming bank is not in privity with the ultimate customer, who would be most likely to become dissatisfied if a conflict is resolved by the confirming bank. A biased issuing bank that in bad faith uncovers “microscopic discrepancies”, N.Y. U.C.C. Study at 66, would still be forced to honor the letter if the documents are in strict compliance. A biased confirming bank, however, can overlook certain larger variances in its discretion without concomitant liability. A safety mechanism against confirming bank misuse is therefore not present and it would be inequitable to let a confirming bank exercise such discretion under a protective umbrella of substantial compliance. Moreover, the facts of this case do not warrant the looser standard. MHT was not faced with a “cross-fire of pressures” or concern that a disgruntled “customer” would refuse reimbursement because Cochin had sufficient funds on deposit with MHT. The Court also notes that the bifurcated substantial compliance standard is only a suggested approach by courts and commentators and has not actually been followed by New York courts. Finally, in Voest-Alpine Int’l Corp. v. Chase Manhattan Bank, N.A., supra, the Court implied that confirming bank actions should be judged under a strict standard in wrongful dishonor as well as wrongful hon- or actions. It ruled that if the confirming bank waived material discrepancies in the drafts, the confirming bank would not be entitled to reimbursement from the issuing bank, which timely discovered the mistakes, because “the issuing bank[] was entitled to strict compliance.” 707 F.2d at 686. Accordingly, the Court finds that an issuing bank’s action for wrongful honor against a confirming bank is governed by a strict compliance standard.

An analysis of the ten listed variances suggests that MHT failed to pick up two discrepancies not strictly complying with the letter of credit terms. The first alleged defect concerns St. Lucia’s cable to Oriental using the wrong covernote number of 4291 instead of 429711. The insurance was procured by Vishwa and the cable was intended to give notice to Oriental of the shipment by quoting the proper cover-note. The failure to provide the correct covernote was not inconsequential as the mistake could have resulted in Oriental’s justifiable refusal to honor Vishwa’s insurance policy. This mistake may appear immaterial on its face, but in Beyene v. Irving Trust Co., supra, 762 F.2d 4, 5-6, the Second Circuit affirmed the dishonor of a letter of credit on the sole ground that the misspelling of Mohammed Sofan as Mohammed Soran on the bill of lading constituted a material discrepancy.

The alleged noncompliance with conditions (2), (3), (4), (8), (9) and (10) is unsupported. These provisions were not explicitly required by the letter of credit. Nothing in the letter indicates that these requirements, some of which were essentially satisfied by the submitted documents, were implicit conditions for payment. If Vishwa or Cochin wanted additional protection, they could have requested it and so informed MHT.

The overpayment and overdebiting of $1,396.50, the fifth alleged error, is a mathematical mistake. Although this sum was reimbursed, it indicates that the documents were not carefully reviewed by MHT. It does not, however, affect whether or not the underlying documents were in compliance with the letter.

The sixth defect is that the payment was made on documents presented by St. Lucia Enterprises despite the fact that the letter of credit was established for St. Lucia Enterprises, Ltd. The result is similar to that caused by the deviation of the Oriental covernote. Although there does not appear to be any difference between the two entities, it is not clear that the “intended” party was paid. The difference in names could also possibly be an indicia of unreliability or forgery.

The seventh alleged defect is that only five copies of the documents, rather than six, were submitted to MHT. This deviation is similar to a hypothetical error not affecting strict compliance posited in Bey ene v. Irving Trust Co., supra, 762 F.2d 4, 6 (“Smith misspelled as Smithh”). These types of variances may be allowable “if there is no possibility that the documents could mislead the paying bank to its detriment.” Flagship Cruises, Ltd. v. New England Merchants Nat’l Bank, 569 F.2d 699, 705 (1st Cir.1978); see Beyene v. Irving Trust Co., 596 F.Supp. 438, 442 n. 8 (S.D.N.Y.1984), aff'd, 762 F.2d 4 (2d Cir.1985). The Court finds that the failure to provide a sixth set of identical documents could not have misled the bank and therefore, it does not violate the strict compliance standard.

In the final analysis, only the variances as to the Oriental covernote and the name St. Lucia Enterprises, Ltd., appear not to comply strictly with the letter of credit conditions. The inquiry is not ended at this point because courts in this Circuit have applied concepts of equitable waiver and estoppel in eases of issuer dishonor. Application of estoppel has been premised upon discoverable nonconformities that could have been cured by the beneficiary before the expiration of the letter, but were not raised by the issuing bank until its dishon- or. The banks were estopped from asserting the variances because of previous assurances to the beneficiary of documentary compliance or because of silence coupled with the retention of nonconforming documents for an unreasonably long time after the beneficiary had submitted its drafts for payment. See Marino Indus, v. Chase Manhattan Bank, N.A., supra, 686 F.2d at 116-118; Data Gen. Corp. v. Citizens Nat’l Bank, 502 F.Supp. 776, 786 (D.Conn. 1980); U.S. Indus, v. Second New Haven Bank, 462 F.Supp. 662, 666 (D.Conn.1978).

Application of waiver has been predicated upon situations in which the issuer justifies dishonor on grounds later found to have been unjustified. In these instances, all other possible grounds for dishonor are deemed to have been waived. See Corporacion de Mercadeo Agricola v. Mellon Bank, supra, 608 F.2d at 48-49; Bank of Canton, Ltd. v. Republic Nat’l Bank, 509 F.Supp. 1310, 1317 (S.D.N.Y.), aff'd, 636 F.2d 30 (2d Cir.1980). Waiver of nonconforming documents can also be found from statements by officials of the issuing bank or from customer authorization. See Voest-Alpine Int’l Corp. v. Chase Manhattan Bank, N.A., supra, 707 F.2d at 684-85; Marino Indus, v. Chase Manhattan Bank, N.A., supra, 686 F.2d at 117; International Leather Distribs., Inc. v. Chase Manhattan Bank, N.A., 464 F.Supp. 1197, 1201 (S.D.N.Y.), aff'd, 607 F.2d 996 (2d Cir.1979).

The quid pro quo for the application of a standard of strict compliance is that there be minimal obligations implicating waiver and estoppel defenses on the party benefiting from the literal compliance review. The UCP expressly provides that an issuer has the obligation to immediately notify the beneficiary by “expeditious means” of any reason for noncompliance and the physical disposition of the disputed documents. UCP art. 8(e) (1974), 16(d) (1983). The UCP also implicitly invites cure of any documentary deficiencies apparent before the letter of credit expiration by issuer notification to the beneficiary. See Thier, Letters of Credit: A Solution to the Problem of Documentary Compliance, 50 Fordham L.Rev. 848, 873-76 (1982) (advocating imposition of affirmative obligations on all parties to the letter). In the context of this case, “[a]n equitable approach to a strict compliance standard demands that the issuer promptly communicate all documentary defects to the beneficiary [or confirming bank], when time exists under the letter to remedy the nonconformity.” Id. at 873. The Court finds that Cochin is precluded from claiming wrongful honor because of its failure to comply with the explicit notice and affirmative obligation provisions of the UCP and its implicit duty to promptly cure discoverable defects in MHT’s confirming advices to St. Lucia.

The issuing bank must give notice “without delay” that the documents received are (1) being “held at the disposal” of the remitting or confirming bank or (2) “are being returned” to the second bank. UCP art. 8(e) (1974), art. 16(d) (1983).- An issuing bank that fails to return or hold the documents for the second bank is precluded from asserting that the negotiation and payment were not effected in accordance with the letter of credit requirements. UCP art. 8(f) (1974), 16(e) (1983); see Manufacturer’s [sic] Hanover Trust Co. v. West-port Bank & Trust Co., Ruling on Cross-Motion for Summary Judgment at 9-10, B-83-17 (TPS/TFGD) (D.Conn.) (issuing bank precluded from pursuing a strict compliance defense for wrongful dishonor because of its “crucial” failure to give “formal notice” that documents were being held for beneficiary despite a retrospective assertion that the documents were always available for inspection), endorsement approval, B-83-17 (TFGD) (D.Conn.1983). The UCP also directs that an issuing bank intending to claim noncompliance shall have a “reasonable time” to examine the documents after presentment and to determine whether to make such a claim. UCP art. 8(d) (1974), art. 16(c) (1983). The revised UCP allows explicitly for the imposition of the 16(e) sanction for failure to comply with the “reasonable time” provision as well; however, this interpretation is not clear under the parties’ explicit choice of law, the 1974 UCP.

Neither the 1983 UCP nor the 1974 UCP defines what constitutes a “reasonable time” to determine if the documents are defective or notice “without delay” that the documents are being held or returned. When the UCP is silent or ambiguous, analogous UCC provisions may be utilized if consistent with the UCP. See First Commercial Bank v. Gotham, 64 N.Y.2d 287, 295 & n. 4, 475 N.E.2d 1255, 1259 & n. 4, 486 N.Y.S.2d 715, 719 n. 4 (1985); United Bank Ltd. v. Cambridge Sporting Goods Corp., 41 N.Y.2d 254, 258 n. 2, 360 N.E.2d 943, 947 n. 2, 392 N.Y.S.2d 265, 269 n. 2 (1976); Eljay Jrs., Inc. v. Rahda Exports, 99 A.D.2d 408, 409, 470 N.Y.S.2d 12, 14 (1st Dep’t 1984). The UCC provides for a period of three banking days for the issuer to honor or reject a documentary draft for payment. N.Y. U.C.C. § 5-112(l)(a) (McKinney's 1964) (issuer-beneficiary relationship). The letter of credit was issued subject to the 1974 UCP but it is silent as to what law governs its terms. Cochin cites to Indian statutes interpreting a “reasonable time” as a factual question depending on the nature of the negotiable instrument and the usual course of dealing. Under the circumstances of this case, however, it appears that under New York’s comparative interest choice of law approach, New York UCC law would apply. See, e.g., J. Zeevi and Sons, Ltd. v. Grindlays Bank (Uganda) Ltd., 37 N.Y.2d 220, 226-27, 333 N.E.2d 168, 174-75, 371 N.Y.S.2d 892, 898-99 (applying New York law to letter of credit litigation because of the “vast amount of international letter of credit business” in the state and because the parties listed dollars as the form of payment), cert. denied, 423 U.S. 866, 96 S.Ct. 126, 46 L.Ed.2d 95 (1975).

Cochin’s failure to promptly notify MHT that it had returned the documents or that it was holding them at MHT’s disposal thus violates the UCP. Cochin’s telex of June 21 states that there are certain discrepancies in St. Lucia’s documents, but Cochin did not advise MHT that it was returning the documents to MHT until the July 3 telex. The “reasonable time” three-day period should be the maximum time allowable for the notification “without delay” requirement. Because June 21, 1980 was a Saturday, Cochin should have complied with its notice obligations no later than June 26. The passage of an additional week before compliance precludes Cochin from asserting its wrongful honor claim. Moreover, it was not until June 27 that Cochin first specified any reason for its dishonor argument, and the St. Lucia Enterprises, Ltd. omission was not noted until July 4.

Cochin proposes that its failure to timely notify MHT was not violative of UCP or letter of credit policy because it caused no additional loss to MHT. Cochin argues that the defects were in any case incurable by the time Cochin received the documents, because St. Lucia had disappeared with the letter of credit proceeds. Although the UCP is not explicit, the Court finds that these provisions should be applied identically to an issuing bank’s obligations to a confirming bank after the latter’s honor of a demand for payment. Cochin’s contention ignores the expectation in the international financial community that the parties will live up to their statutory obligations and is at odds with the basic letter of credit tenet that banks deal solely with documents, not in goods. Cochin’s argument would defeat the letter of credit’s function of being a swift, fluid and reliable financing device. Cf. Voest-Alpine Int’l Corp. v. Chase Manhattan Bank, N.A., supra, 707 F.2d at 684-85 (rejecting contention that a waiver analysis was inappropriate because the defects were “incurable”).

Finally, the two documentary discrepancies could have been anticipated by Cochin and were curable before the demand for payment. Cochin received a copy of MHT’s incorrect March 31 advice to St. Lucia, which mistakenly listed the insurance covernote as 4291. Similarly, Cochin received copies of all of MHT’s advices to St. Lucia, which omitted the “Ltd.” from the corporate name. Cochin had sufficient notice and time to correct MHT’s confirming defects to St. Lucia and is therefore estopped from asserting them, Although MHT failed to strictly comply with the letter requirements, Cochin’s failure to perform its affirmative obligations precludes an action for wrongful honor under the UCP and by letter of credit estoppel.

CONCLUSION

Accordingly, for the foregoing reasons, plaintiff’s motion for summary judgment is denied, Fed.R.Civ.P. 56(a), and defendant’s motion for summary judgment is granted, Fed.R.Civ.P. 56(b). .

The Clerk of the Court is directed to dismiss the complaint and prepare and enter Judgment for defendant MHT.

SO ORDERED.

      . Vishwa’s application for documentary credit required that St. Lucia supply the following documents and shipment conditions as a prerequisite to payment:
      Six copies of signed invoices;
      One set of clean shipped on board bills of lading;
      Notification of shipment to Vishwa;
      A maritime insurance policy covering civil unrest, marine and war risks;
      A certificate of United States origin in triplicate;
      A certificate of analysis from "LLOYDS” [sic] [of London] ["Lloyd’s”] confirming the quantity, quality and shipment of the aluminum scrap;
      Shipment by conference or first class vessel;
      Shipment by a non-Pakistani vessel.

      . The documentary and other requirements for the letter of credit set forth in Cochin's telex included:
      Sight drafts of the invoice value in duplicate;
      Six copies of the signed invoices showing that the aluminum was covered under notice 44-ITC(PN) 79;
      One set of clean shipped on board bills of lading to the order of Cochin;
      A certificate of United States origin in triplicate;
      A certificate of analysis of the aluminum from Lloyd’s;
      Shipment from a United States port to Bombay;
      A marine insurance policy issued by a first class insurance company;
      A packing list in triplicate;
      One set of nonnegotiable documents to be sent directly to Vishwa immediately after shipment documented by a "cable advise” to Vishwa;
      Shipment by conference or first-class vessel.

      . The UCP was revised effective October 1, 1984. UCP, Int’l Chamber of Commerce, Pub. No. 400 (1983). It is axiomatic that the Court must ordinarily apply the law in effect at the time it renders its decision. See Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969); Byrne v. Buffalo Creek Railroad Co., 765 F.2d 364, 366 (2d Cir.1985). The letter of credit was, however, governed by the 1974 UCP pursuant to its express terms. See Marine Midland Grace Trust Co. v. Banco del Pais, S.A., 261 F.Supp. 884, 886 n. 1 (S.D.N.Y.1966). Although the application of the 1983 UCP would favor MHT, see infra, it would not alter the Court’s decision on the motions.

      . MHT’s February 25 form advice listed correctly all the letter of credit conditions. On February 26, MHT requested information from Cochin on the first class insurance company and an explanation as to what documentation was needed to ascertain compliance with shipment by conference or first class vessel. See UCP art. 14(b) (1974) (rejecting usage of "first class” to describe issuers of documents), art. 22(b) (1983) (same). Cochin responded on February 28 by amending the letter of credit insurance clause to require that St. Lucia send a cable to Oriental Fire and General Insurance Co. ["Oriental”] citing covernote 429711. Cochin also requested that the shipping company or Lloyd’s certify that the shipment was made by first class or approved vessel. The cable and certificate were to be submitted with the other documents. MHT accurately relayed this information to St. Lucia in its February 29 confirming telex.

      . Cochin sent telexes to MHT on March 3, March 15, March 27 and April 29 amending the letter to reflect that shipment should be made from a port in western Europe and extending the shipping date to May 31 and the letter of credit expiration date to June 15. The inspection clause was also changed to allow a certificate of analysis from Lloyd's or any international agency. Additionally, Cochin requested that St. Lucia produce a certificate that it had duly complied with all terms of the letter of credit.
      MHT accurately conveyed these amendments to St. Lucia by written advices dated March 10, March 31, April 8 and May 2. The March 31 advice incorrectly identified the Oriental cover-note as 4291, which MHT had properly designated as 429711 in its February 29 confirming advice. Notwithstanding MHT's allegation that Cochin cited covernote 4291, Cochin accurately used covernote 429711 in its telex amendments of February 28 and March 27. Each form of advice sent to St. Lucia and Cochin contained a beneficiary box with the following address: St. Lucia Enterprises, 210 Fifth Avenue, Suite No. 1102, New York, N.Y. 10010.

      . Invoice 36C was for $79,121.70; invoice 36D was for $79,321.20; invoice 36F was for $79,-560.60 and invoices 36A, 36B, 36E, 36F, 36G, 36H, 361 and 36J were each for $79,800.

      . The UCP suggests the better view, however, that there is a duty running from the confirming bank to the ultimate customer. See UCP art. 12(a) (1974), art 20(a) (1983) ("Banks utilizing the services of another bank for the purpose of giving effect to the instructions of the applicant for the credit do so for the account and at the risk of [such applicant].”); art. 12(c) (1974), art. 20(c) (1983) (customer indemnification of the confirming bank); see also Pubali Bank v. City Nat’l Bank, 676 F.2d 1326, 1329-30 & n. 5 (9th Cir.1982) (warranty and tort liability); Instituto Nacional de Comercializacion Agricola (Indeca) v. Continental III. Nat’l Bank & Trust Co., 530 F.Supp. 279, 282-85 (N.D.Ill.1982) (negligence and fraud); Dann, Confirming Bank Liability in Letter of Credit Transactions: Whose Bank Is It Anyway?, 51 Fordham L.Rev. 1219, 1238-53 (1983) (recommending creation of liability through extension of UCC and UCP provisions, negligent mispresentation and warranty theory).

      . In discussing New York’s bifurcated standard, courts and commentators have mistakenly cited each other and the following cases as support for the proposition that New York courts use a bifurcated approach: Transamerica Delaval Inc. v. Citibank, N.A., supra; Data Gen. Corp. v. Citizens Nat’l Bank, 502 F.Supp. 776 (D.Conn. 1980); Far Eastern Textile, Ltd. v. City Nat'l Bank & Trust, supra; Marine Midland Grace Trust Co. v. Banco del Pais, S.A, supra; North American Mfrs. Export Assocs. v. Chase Nat’l Bank, 77 F.Supp. 55 (S.D.N.Y.1948); Bank of Montreal v. Recknagel, 109 N.Y. 482, 17 N.E. 217 (1888); Chairmasters, Inc. v. Public Nat'l Bank &

        Trust Co., 283 A.D. 704, 127 N.Y.S.2d 806 (1st Dep't 1954); Bank of New York & Trust Co. v. Atterbury Bros., 226 A.D. 117, 234 N.Y.S. 442 (1st Dep’t 1929), aff’d, 253 N.Y. 569, 171 N.E. 786 (1930). See, e.g., N.Y. U.C.C. Study, supra, at 66; J. Dolan, supra, ¶ 9.03[1][a], at 9-22 to -23; T. Quinn, supra, ¶ 5—114[A][8] at S5-23 to -24; J. White & R. Summers, § 18-6, at 732. A closer reading of these cases suggests otherwise.
      In Bank of Montreal, the New York Court of Appeals applied a strict compliance standard when it denied recovery in an action by the issuing bank for reimbursement from its customer who claimed that the bank wrongfully honored the letter of credit. The Court held that the draft advices describing shipments as "bales of hemp” were insufficient to comply with the letter of credit condition for invoices and bills of lading of "bales manilla hemp”. In Atterbury Bros., the plaintiff bank successfully sued its customer for reimbursement. The Court acknowledged that the bank took a "risk” by paying pursuant to shipping documents issued to "A. James Brown” when the letter of credit specified "Arthur James Brown”. The parties, however, conceded that the intended person signed the documents. The "conclusive” point on the issue of "casein” versus “unground casein” was resolved by an "estoppel" against the customer because it had examined the documents prior to the bank’s payment. The remaining objections, characterized as “afterthoughts”, were dismissed on grounds of laches and because there was no possibility that a missing certificate could have misled the paying bank. See, e.g., Beyene v. Irving Trust Co., 596 F.Supp. 438, 442 n. 8 (S.D.N.Y.1984), aff’d, 762 F.2d 4 (2d Cir.1985). In North American, Judge Medina granted summary judgment to the bank against the beneficiary under a “strict compliance", standard. In Chairmasters, the court granted summary judgment to the defendant bank under the basic tenet that the bank’s obligation to review documents for compliance is totally separate from the underlying transaction. In Marine Midland, Judge McLean ruled that letter of credit conditions must be "strictly complied” with by a beneficiary. In Far Eastern, the Ohio court used a strict compliance standard, but cited Marine Midland as the sole case law authority for its dictum discussion of the New York bifurcated standard, which was the initial judicial recognition of this approach. Similarly, in Data General, the Connecticut court cited only Far Eastern and Marine Midland for its dictum footnote comment on the development of "two different standards”. Finally, in Transamerica Delaval, citing only Far Eastern as case law support, a New York court for the first time discussed the bifurcated standard. The court applied a substantial compliance standard in a lawsuit by a customer against its issuing bank for wrongful honor. The customer used vague language as to what would constitute a proper demand for payment under the letter, necessitating the ruling that it would have been "unreasonable for [the customer] to insist upon strict compliance.” This result is better viewed not as an adoption of the bifurcated approach, but as the use of a strict compliance test with the “corollary” that letter requirements must be "explicit” and that all ambiguities should be construed against the party formulating the language in the letter. See Marino Indus, v. Chase Manhattan Bank, N.A., supra, 686 F.2d at 115 (all ambiguities construed against the issuing bank in an action for wrongful dishonor by the beneficiary).