MEMORANDUM
SUE L. ROBINSON, United States District Judge
At Wilmington this 11th day of August, 2016, having reviewed the papers filed in connection with plaintiff's motion for a preliminary injunction, and having heard oral argument on the same, the court issues its decision to deny the motion, for the following reasons:
1. Procedural background. On February 24, 2016, plaintiff VeriFone Inc. ("plaintiff") filed a complaint alleging, inter alia, trademark infringement against defendant Poynt Co. ("defendant"). (D.I. 1) The court has jurisdiction over the Lanham Act claims pursuant to 28 U.S.C. §§ 1331 and 1338(a) and (b). The court has supplemental jurisdiction over plaintiff's state law claims pursuant to 28 U.S.C. § 1367(a).
2. Plaintiff is a corporation formed under the laws of the State of Delaware with a principal place of business in San Jose, California. (D.I. 1 at ¶ 13) Defendant is a corporation formed under the laws of the State of Delaware with a principal place of business in Palo Alto, California. (Id. at ¶ 14)
3. Factual background.1 Plaintiff is a large corporation founded 35 years ago that provides retail payment systems—terminals where payment cards are "swiped," "dipped," or "tapped" to collect payments. In late 2011, plaintiff acquired Point International AB, northern Europe's largest provider of payment and gateway services and solutions for retailers, for €600 million. Point International AB used the name "Point" in northern Europe for 25 years and had achieved high brand awareness.2 Plaintiff adapted the European services model for the United States payment market seeking to leverage the goodwill and strength of Point International AB. In May 2013, plaintiff introduced Point services, "a suite of services offered with [plaintiff's] payment terminals, establishing a secure commerce architecture" ("SCA"), using POINT, and VERIFONE POINT ("the Point marks"). The SCA allows merchants to continue using their existing cash register systems, while complying with EMV3 chip technology, by using plaintiff's terminals and subscribing to Point services. Plaintiff's terminals are named VX or MX and display the Point, logo on the screen if they are running Point services. (D.I. 39)
4. Defendant makes a hardware device, "the Poynt Smart Terminal," which "is specifically designed for security and is certified as secure by the Payment Card Industry" ("PCI"). Defendant sells its terminal through merchant acquirers (large banking institutions that process payments for merchants) for $499. Defendant does not provide payment services. Osama Bedier ("Bedier"), defendant's CEO, chose the name Poynt in the fall of 2013. Bedier was aware in 2013 of Point International AB and its 2011 acquisition by plaintiff, but he did not believe plaintiff would expand Point services into the United States. Bedier searched the United States Patent and Trademark Office's ("PTO") trademark database multiple times (starting in October 2013 and as late as September 2014) to see whether plaintiff had registered the POINT mark for use in the United States and found no such registration. Defendant filed a trademark application for "POYNT" on October 15, 2014. (D.I. 49) Plaintiff filed trademark applications on December 31, 2014 for "POINT." and "VERIFONE POINT."4 (D.I. 38, exs. A, B)
5. In late 2014, Bedier was a keynote speaker at the 2014 Money 20/20 tradeshow in Las Vegas, Nevada. (D.I. 39 at ¶ 23) Paul Galant ("Galant"), plaintiff's CEO, stated that he made efforts to contact Bedier after the tradeshow "to catch up" and discuss Bedier's use of the name Poynt. He first spoke with Bedier in early 2015; Bedier indicated that "he was open to the possibility of changing the branding of [Poynt Co.] and its payment terminals to differentiate them from [plaintiff's] Point services." (D.I. 41) Bedier alleges that plaintiff reached out in January 2015 to discuss brand names, but he does not recall any suggestion to change the Poynt name after January 2015. (D.I. 49) Plaintiff alleges that its executive vice president of commerce enablement5 met with Bedier in early 2015 to discuss a business resolution. They had several conversations in 2015, but the discussions did not involve trademark law, a lawsuit, or settlement. (D.I. 40; D.I. 49)
6. Plaintiff opposed defendant's trademark application on September 22, 2015. Bedier stated that he sought information from plaintiff regarding the trademark opposition to no avail.6 (D.I. 49) On September 24, 2015, plaintiff's website described its payment services using the name "Point." (D.I. 48, ex. B) At the 2015 Money 20/20 tradeshow, the parties' booths were located directly across the aisle from each other. (D.I. 39 at ¶ 24) Plaintiff reached out to Bedier in early 2016, but Bedier stated that he would not change the Poynt name and would contact Galant to further discuss the matter. (D.I. 40) As of March 5, 2016 (and as accessed by the court on August 2, 2016), plaintiff's website no longer featured the name Point. (D.I. 48, ex. A)
7. Defendant spent considerable funds on marketing and building its brand, and is currently poised to enter the market. Bedier opines that the market for payment terminals is very hard to enter and no new market entrant has been able to acquire a significant percentage of card processing devices in the United States since plaintiff's founding in 1981. Moreover, certification of devices is expensive and time consuming. (D.I. 49)
8. Plaintiff's global net revenues were $2 billion in fiscal year 2015, of which 34.5% came from payment services. In North America, payment services accounted for 31% of plaintiff's $791 million in revenue. Plaintiff has a large budget for the marketing of its products and services in North America, of which a certain portion is dedicated to marketing Point services. Plaintiff continues to invest in marketing Point services through attendance at tradeshows and smaller events. Plaintiff sells its terminals and Point services to merchants looking to replace their existing payment terminals with EMV-compliant devices either directly or through merchant acquirers. Larger merchants tend to purchase directly from plaintiff. As of January 31, 2016, a number of payment terminals were under contract to run Point services, accounting for certain revenue and monthly billing. (D.I. 39)
9. Standard. As explained by the United States Court of Appeals for the Third Circuit,
[p]reliminary injunctive relief is an "extraordinary remedy, which should be granted only in limited circumstances." ... "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." ... The "failure to establish any element ... renders a preliminary injunction inappropriate." ... The movant bears the burden of showing that these four factors weigh in favor of granting the injunction.
Ferring Pharm., Inc. v. Watson Pharm., Inc. , 765 F.3d 205, 210 (3d Cir.2014) (citations omitted). " ‘[O]ne of the goals of the preliminary injunction analysis is to maintain the status quo, defined as the last, peaceable, noncontested status of the parties.’ " Kos Pharm., Inc. v. Andrx Corp. , 369 F.3d 700, 708 (3d Cir.2004) (citation omitted). In a trademark case, for example, "[it] is the situation prior to the time the junior user began use of its contested mark." Id. (citation omitted). "[T]he decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and ... such discretion must be exercised consistent with traditional principles of equity ...." eBay Inc. v. MercExchange, LLC , 547 U.S. 388, 394, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006).
10. Likelihood of success on the merits—trademark infringement. The Lanham Act defines trademark infringement as use of a mark so similar to that of a prior user as to be "likely to cause confusion, or to cause mistake, or to deceive." 15 U.S.C. § 1114(1). "Likelihood of confusion under the Lanham Act is not limited to confusion of products[; c]onfusion as to source is also actionable." Kos Pharms. , 369 F.3d at 711. To prove trademark infringement, plaintiff must show that: (1) the mark is valid and legally protectable; (2) plaintiff owns the mark; and (3) defendant's use of the mark to identify goods or services is likely to create confusion concerning the origin of the goods or services. Fisons Horticulture, Inc. v. Vigoro Indus., Inc. , 30 F.3d 466, 472 (3d Cir.1994) (citations omitted). The Third Circuit has identified a number of factors to aid in determining likelihood of confusion. Those factors include:
(1) the degree of similarity between the owner's mark and the alleged infringing mark; (2) the strength of the owner's mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) the evidence of actual confusion; (7) whether the goods, [even if] not competing, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties' sales efforts are the same; (9) the relationship of the goods in the minds of consumers because of the similarity of
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