321 B.R. 845 (2004)
In re Joseph M. MARTZ, Debtor.
No. 03-70088.
United States Bankruptcy Court, N.D. Ohio.
July 29, 2004.
*847 Steven L. Diller, Esq., Van Wert, OH, for debtor.
Anthony B. DiSalle, Esq., Toledo, OH, for trustee.

DECISION AND ORDER
RICHARD L. SPEER, Bankruptcy Judge.
This cause comes before the Court after an Evidentiary Hearing on the Debtor's Objection to the Proof of Claim of Lawrence Woods. As the basis for his objection, the Debtor stated that the claim of Mr. Woods is "based on an assignment" against which he "believes he has defenses and competing claims against the assignee which reduce if not eliminate the claim." (Doc. No. 15). The factual circumstances underlying the instant matter, as presented to the Court at the Hearing, are set forth below. Pursuant to the standard of Bankruptcy Rules 7052 and 9014, this delineation of the circumstances shall constitute this Court's findings of fact.
The Creditor, Lawrence Woods, was invited and then agreed to participate in a business endeavor engaged in by the Debtor, Joseph Martz, and a third-party, Robert Lawson. This business endeavor, which centered on food catering, was incorporated under the name of Lawson & Martz. As consideration for his inclusion in the business endeavor, Mr. Woods contributed $100,000.00 in working capital. Although no formal agreement was ever drawn up, it was the understanding of the Parties that Mr. Woods' role in the Company would be that of a one-third equity owner.
Shortly after Mr. Woods made his capital contribution, the Debtor withdrew $40,000.00 from the business, the authority for which he based upon a short term note that he had with the Company. This act, among a few others, created some consternation between the Parties. To settle their difficulties, the Corporation incurred additional business debt totaling $300,000.00. (Ex. No. 2). Of this amount, $100,000.00 was paid to Mr. Woods personally, $125,000.00 went to the Company for working capital and the remainder was disbursed to the Debtor and Mr. Lawson. Each of the principals of the businessthe Debtor, the Creditor, and Mr. Lawson signed a personal guaranty for this loan. (Ex. No's 3, 4, & 5). This was in contrast to an earlier loan extended to the Company, prior to Mr. Woods' involvement in the business, for which only the Debtor and Mr. Lawson were guarantors.
After experiencing financial difficulties, the Parties' food catering business discontinued operations. At this time, the assets of the Company were liquidated in order to satisfy outstanding obligations of the Corporation; during this process, no proceeds were appropriated by any of the Parties for personal gain. After the liquidation of its assets, the Parties' Corporation still had outstanding obligations. Of the outstanding obligations, substantial balances remained on the aforesaid mentioned debts for which personal guarantees were executed.
*848 Based upon his personal liability, the Debtor paid a substantial sum on the debt incurred by the Company prior to Mr. Woods' involvement for which only he and Mr. Lawson were guarantors; for simplicity sake this will be referred to as the "first debt." As for what will be termed the "second debt," against which all the principals signed as guarantors, neither the Debtor nor Mr. Lawson made any payments from their personal assets on this obligations, with Mr. Lawson discharging his personal liability for both debts through the filing of a Chapter 7 bankruptcy shortly after the Company ceased operations. Instead, with respect to the second debt, only Mr. Woods made payments from his personal assets, in all paying $284,026.13 which, because of previous credits, satisfied the obligation in full. According to the Debtor, this arrangement simply effectuated a prior understanding that had been reached between Mr. Woods and himself. Mr. Woods disputes, however, the existence of any such understanding, calling this Court's attention to the lack of any written agreement.
In exchange for paying the second debt in full, the original note holder assigned to Mr. Woods a judgment that it had previously obtained against the Debtor and Mr. Lawson. This judgment was in the amount of $139,229.55, plus interest, representing the joint and several liability of both the Debtor and Mr. Lawson as personal guarantors on the note. (Doc. No. 6). As it relates to the assignment, two points of clarification need to be made. First, the facts presented in this case indicate that the original note holder had agreed to temporarily forego legal action against Mr. Woods in anticipation of full satisfaction of its obligation. In addition, Mr. Woods acknowledged that at the Hearing only part of his claim of $284,026.13 represented his consideration for the assignment; the other portion simply represented his personal liability on the note.
On October 31, 2003, the Debtor filed a petition under Chapter 13 of the United States Bankruptcy Code. Against the Debtor's estate, Mr. Woods filed a proof of claim in the amount of $284,026.13, representing the full amount of personal assets he expended in order to satisfy the outstanding liabilities of the Parties' Corporation on the second debt.

DISCUSSION
The matter before the Court is the Debtor's objection to the proof of claim filed by Lawrence Woods. Issues concerning the allowance or disallowance of claims against the bankruptcy estate constitute a core proceeding over which this Court has been conferred with the jurisdictional authority to enter final orders. 28 U.S.C. §§ 157(b)(2)(B) & 1334.
The Debtor, as an individual seeking to reorganize his debts, has brought his bankruptcy case under Chapter 13 of the United States Bankruptcy Code. Bankruptcy Rule 3002 provides that an unsecured creditor wishing to participate and receive a distribution through a debtor's plan of reorganization must file a proof of claim. In re Jett, 198 B.R. 489, 490 (Bankr.E.D.Ky.1996). Once filed, § 502(a) states that "[a] claim of interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest ... objects." Paragraph (b) of this section then goes on to provide "if such objection to a claim is made, the court, after notice and a hearing, shall determine the amount of such claim as of the date of the filing of the petition, and shall allow such claim ... in such amount..."11 U.S.C. § 502(b).
A proof of claim executed and filed constitutes prima facie evidence of the validity *849 and amount of the claim. FED.R.BANK.P.3001(f). After an objection is raised, the objector bears the burden of going forward to produce evidence sufficient to negate the prima facie validity of the filed claim. If the objector produces evidence sufficient to negate the validity of the claim, the ultimate burden of persuasion remains on the claimant to demonstrate, by a preponderance of the evidence, that the claim deserves to share in the distribution of the debtor's assets. Spencer v. Pugh (In re Pugh), 157 B.R. 898, 901 (9th Cir. BAP 1993).
The dispute surrounding the proof of claim filed by Mr. Woods centers on the proper allocation of corporate debt against its principals. The Debtor argues that he is not liable to Mr. Woods for any outstanding obligations; Mr. Woods, on the other hand, is at the opposite end of the spectrum, seeking a determination that the Debtor's estate should be held fully liable for all personal contributions he made on the second corporate debt.
The principle of limited liability is the dominant characteristic of American Corporate law. Baker v. Raymond International, Inc., 656 F.2d 173, 179 (5th Cir. 1981). Yet, as is the situation here, the principal(s) of a corporation may voluntarily agree to become a personal guarantor of corporate debt, often as a precondition to obtaining corporate financing. However, the mere fact that a corporate-principal undertakes to personally guarantee a corporate debt does not impute liability to any of the other principals of the corporation. Instead, whether it is with the corporatecreditor or the guarantor, a co-principal's liability, unless otherwise imposed by law, only exists by agreement.
As it applies to these tenets, the Debtor asserts that he had an understanding with Mr. Woods which would proceed according to these terms: (1) the Debtor would assume all personal responsibility for paying the first corporate debt; and (2) as consideration therefore, Mr. Woods would undertake to indemnify both the Debtor and Mr. Lawson, as co-guarantors, on the second debt. From these terms, the Debtor now asserts a right of set-off; that is, the Debtor seeks to set-off the amount he personally paid on the first corporate debt against those monies Mr. Woods personally paid on the second corporate debt. Mr. Woods, however, vehemently denied the existence of any such agreement, noting that nothing was ever placed in writing.
As with other oral contracts, agreements among the principals of a corporation are generally enforceable. Sherman v. Haines, 73 Ohio St.3d 125, 652 N.E.2d 698 (1995); See also Hughes v. Miner, 15 Ohio App.3d 141, 473 N.E.2d 53 (1984) (oral promise to pay debt of corporation by majority shareholder not within statute of frauds). All the same, certain types of agreements are not enforceable unless a writing is produced. Unignorable in this respect is that, pursuant to Ohio's statute of fraud provision, the lack of a writing may be raised as a defense when the agreement to be enforced involves a promise to answer for the debt of another. O.R.C. § 1335.05.[1]
In Trans-Gear Inc. v. Lichtenberger, the court explained the parameters of this exception to the enforceability of an oral contract as follows: *850 the first inquiry is whether the promisor became primarily liable on the debt owed by another to a third party, in the sense that the original debtor is discharged as to the original creditor. If the promisor agreed to become primarily liable on the debt and the original debtor has been discharged, then the promisor is, in essence, no longer answering for the debt of another, and the Statute of Frauds would have no application. This is often referred to as an `original promise,' and in effect, a new contract with new consideration has been formed.
If, however, the trial court determines that the promisor did not become primarily liable, and the original debtor remains liable, then the promise is nothing more than a collateral or secondary promise to answer for the debt of another, and the Statute of Frauds is applicable.
128 Ohio App.3d 504, 509-10, 715 N.E.2d 608, 611 (1998). As applied here, the agreement the Debtor espouses exists is clearly akin to the conditions set forth in the latter paragraph, and thus implicates the statute of fraudsthe Debtor is asking that he be indemnified by Mr. Woods on a debt, the consideration for which arises for payments made by the Debtor on an obligation against which Mr. Woods has no personal liability. Furthermore, nothing would suggest that the terms of the agreement espoused by the Debtor placed Mr. Woods in privity with the primary lender, thus making Mr. Woods simply a secondary promisor.
However even if, for argumentative sake, this were not the case, the evidentiary burden is still on the Debtor, as the party seeking to use parol evidence, to show that a contract existed. American Bronze Corp. v. Streamway Products, 8 Ohio App.3d 223, 228, 456 N.E.2d 1295, 1301 (1982). In contrast to this burden, however, the Court does not have before it any appreciable corroborating evidence to substantiate the existence of the agreement espoused by the Debtor. To the contrary, the Court only has before it the self-serving testimony of the Debtor.
Consequently, the Court, based upon both factual and legal deficiencies, must operate under the premise that no agreement was entered into by the Parties regarding their respective personal liabilities on the corporate debts. Therefore, Mr. Woods, not being a personal guarantor of the first corporate debt, has no legal liability for paying this obligation, meaning that the Debtor cannot seek a right of set-off for the amounts he personally paid on the obligation. In contrast, therefore, to the Debtor's overall position, Mr. Woods' claim cannot be reduced to zero or otherwise eliminated.
In a similar manner, however, the Court must also dismiss outright awarding the full $284,026.13 sought by Mr. Woods on his proof of claim. The difficulty here is that, although the Debtor is also liable on this debt, this amount represents the entire amount paid by Mr. Woods on the second corporate debt. It follows, therefore, that to allow the claim in full would, for all practical purposes, completely abrogate his personal liability on the debt. In other words, to allow Mr. Woods' claim in full would permit him to avoid the business risk he undertook when he initially invested in the Company. This is simply not acceptable considering his status as both a cosignatory on the debt and an equity security holder in the now defunct corporation. In practice, Mr. Woods agreed to this conclusion through acknowledging that only a part of his claim represented the consideration for the assignment of the judgment, with the other portion representing his personal liability on the note.
*851 There still, however, remains a major facet of this case yet to be addressed: contribution. Ohio law provides that where, as here, "two or more are under a common obligation to perform some lawful duty involving the expenditure of money, and one of them performs the whole duty and discharges the obligation, he is entitled to have contributory reimbursement from the others equally bound with him." Terry v. Claypool, 77 Ohio App. 87, 93, 65 N.E.2d 889, 892 (3d Dist.1946). Generally, the amount of the contributive share (in the absence of a contrary agreement or other equitable circumstances), is apportioned equally among the co-obligors, with the payor entitled to recover a proportionate share from each obligor to the extent that the payor's remuneration is in excess of his proportionate share. OHIO JURISPRUdence 3d, Contribution, § 15. In this case, as there were three guarantorsthe Debtor, Mr. Woods and Mr. Lawsonon the note against which Mr. Woods fully paid the obligation of $284,026.13, the Debtor's contributive share is one-third of that amount, or $94,675.38.
Nevertheless, this case contains an additional wrinkle: the Debtor, jointly and severally, is liable on a $139,229.55 judgment assigned to Mr. Woods by the original note holder. Consequently, the question of which figure to utilize naturally arises: the judgment amount or the measure of the Debtor's contributive share.
As acknowledged by the Debtor, the judgment would clearly control had it been assigned to a disinterested third-party. Naturally, however, Mr. Woods is not a neutral third-party. And after having had the opportunity to examine the matter, a proper application of Ohio law, as is applicable here, requires that an entity, such as Mr. Woods who is not disinterested, is proscribed from increasing their contributive share through the assignment of a judgment.
In Marc Glassman, Inc. v. Bag-A-Sweet Candy Co., 1995 WL 739622 (Ohio Ct.App. 8th Dist. Cuyahoga County 1995), an unreported case, the Court of Appeals for Eighth District in Ohio was confronted with an almost identical fact pattern. 1995 WL 739622 (Ohio CtApp. 8th Dist.1995). A corporation was liable on two loans, evidenced by cognovit notes. The notes were guaranteed by three parties. After defaulting on the notes, the assets of the corporation were liquidated to pay the notes; a deficiency, however, still remained. One of the guarantors then paid the deficiency, taking an assignment of the notes and remaining guarantees from the note holder as consideration. Thereafter, the payor, as assignee of the note, commenced a collection action against the other two guarantors, who were husband and wife, for the full amount paid on the deficiency.
Based upon these facts, the court in Bag-A-Sweet Candy Co., held that due to the existence of a right of contribution, the payor was not entitled to recover from the husband and wife guarantors the full amount due on the assigned notes:
Although the [payor] might, under the proper circumstances, be entitled to a judgment for contribution against the [husband and wife], it cannot, as a purported assignee, take judgment for the full amount alleged to be owed on the... Notes. [Payor's] right of contribution is limited to the amount paid that exceeds [payor's] proportionate share of the liability.
Id. at *2. The reasoning upon which this is based simply follows the theme, previously promulgated by the Supreme Court of Ohio when addressing a right of contribution, that one should not be permitted to do indirectly (collect on an assigned judgment) *852 what they could not have done directly (receive more than a distributive share). Royal Indemnity Co. v. Becker, 122 Ohio St. 582, 173 N.E. 194 (1930).
Similar to above, it has also been held under Ohio law that when, after payment, a judgment has been assigned to a debtor, his action against any codebtors is not through the judgment or underlying note, but rather through the maintenance of a separate action for contribution. First National Bank in St. Petersburg v. Hoffman, 1991 WL 18686 (Ohio CtApp. 8th Dist. Cuyahoga County 1991), citing Rainbow Stone Co. v. Ten Color Stone Co., 141 N.E .2d 266, 76 Ohio Law Abs. 432, 433 (Ohio CtApp. 8th Dist.1957). All the same, taking an assignment of a judgment, even when a right of contribution is present, is not necessarily a futile act. It is generally recognized that, "[w]here an assignment is taken, an intention to keep the principal obligation alive for the purpose of enforcing contribution is generally deemed to be shown." 18 Am.Jur. 2D, Contribution, § 91 (2003). The assignment of a judgment will not, however, trump principles of contribution.
To bring things together then, these are the holdings of this Court. In liquidating the claim held by Mr. Woods, the Court must proceed on the assumption that, contrary to the Debtor's position, no agreement existed between the Parties regarding their respective liabilities. In the absence of an agreement, applicable law shows that Mr. Woods, having fully paid an obligation for which the Debtor was also liable, is entitled to receive a distributive share from the Debtor. As against the judgment assigned to Mr. Woods, this entitlement to a distributive share, being directly related to the assignment, trumps the Debtor's liability on the judgment vis-a-vis Mr. Woods. Similarly, Mr. Woods, having taken the risk by investing in the food catering business, may not avoid liability on the second corporate debt by seeking the allowance of his claim for the full amount of the remunerations he made on the obligation. Finally, in the absence of any agreement, the Debtor may not seek any set-off for the amounts he paid on the first corporate debt, as Mr. Woods has no personal liability thereon.
In reaching the conclusions found herein, the Court has considered all of the evidence, exhibits and arguments of counsel, regardless of whether or not they are specifically referred to in this Decision.
Accordingly, it is
ORDERED that the Debtor's objection to the Proof of Claim filed by Mr. Woods is hereby Sustained in Part.
It is FURTHER ORDERED that the proof of claim filed by Lawrence Woods, be, and is hereby, allowed as an unsecured claim in the amount of Ninety-four Thousand Six Hundred Seventy-five and 38/100 dollars ($94,675.38).
NOTES
[1]  In relevant part, this section provides, "[n]o action shall be brought whereby to charge the defendant, upon a special promise, to answer for the debt, default, or miscarriage of another person; . . . unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith or some other person thereunto by him or her lawfully authorized."


214 F.3d 237 (2nd Cir. 2000)
MICHAEL FARRINGTON, Petitioner-Appellant,v.DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent-Appellee.
Docket No. 98-2939August Term, 1999
UNITED STATES COURT OF APPEALSFOR THE SECOND CIRCUIT
Submitted: August 26, 1999Decided: June 05, 2000

Appeal from a dismissal by the United States District Court for the Southern District of New York (Barrington D. Parker, Jr., Judge) of appellant's habeas petition. Appellant principally claims that his trial counsel's failure to cross-examine a witness based on a videotaped statement constituted ineffective assistance of counsel. Because such cross-examination would not have affected the outcome, we affirm.
Domenick J. Porco, Scarsdale, New York, for Petitioner-Appellant.
John J. Sergi, Assistant District Attorney, Westchester County (Jeanine Pirro, District Attorney, and Joseph M. Latino, Assistant District Attorney, of counsel), White Plains, New York, for Respondent-Appellee.
Before:  WINTER, Chief Judge, KEARSE, and STRAUB, Circuit Judges.
WINTER, Chief Judge:

1
Michael Farrington appeals from Judge Parker's dismissal of his habeas petition brought pursuant to 28 U.S.C. § 2254. Appellant argues that: (i) the evidence at trial was insufficient as a matter of law to support his felony murder and attempted robbery convictions; (ii) he was deprived of effective assistance of counsel when his attorney failed to cross-examine a witness based on a videotaped statement and to object to certain jury instructions; and (iii) the prosecutor's statements to the jury deprived him of a fair trial. We affirm.

BACKGROUND

2
In the early morning hours of July 16, 1991, in Mount Vernon, New York, appellant met four of his friends, Victor Byrd, Anthony Burts, Kenya Forrester, and Lamont Gainey. The five teenagers went to a public park where they drank beer and smoked marijuana. Burts had a loaded pistol, which he passed around. Gainey took the bullets out of the gun, slit the tops off, and put them back in the gun, purportedly to make them more likely to open upon impact. The group briefly discussed robbing a restaurant but rejected the idea because they were likely to be recognized by workers or patrons.

3
The group then left the park and decided to steal a car. While going to Forrester's house to get a screwdriver to be used in the theft, they came upon Joseph Hanna, who was delivering newspapers and had left his car idling. They asked him for a newspaper, and he threw them one. They then decided to steal Hanna's car.

4
After appellant got into the car, Hanna ran over to the vehicle and began to struggle with appellant. At some point, the car crashed into a parked vehicle. After some time, Burts fired a shot in the air. Appellant and Hanna continued to struggle. Gainey took the gun from Burts, ran over to the car, and shot Hanna, killing him. The teenagers fled on foot.

5
When apprehended, each of the teenagers gave videotaped testimony to the police. In appellant's videotaped statement, he stated that he did not know or expect that his friends would intervene but admitted that he attempted to move the car forward when Hanna reached into the car and attempted to move the gearshift into park. He stated that he struggled with Hanna over the gearshift and the keys.

6
Forrester was the state's primary witness at appellant's trial. In the videotaped statement made after his arrest, Forrester related the following:

7
Then, the man came over to the window, and was grabbin' him and then, [he] kept on putting the car in drive and then the man threw it in park and he's tryin' to put it back in drive. Then the man grabbed his hands and was goin' to pull him out the window, couldn't get him out the window.

8
Later on the tape, Forrester was asked whether Hanna said anything during the struggle, to which he replied:

9
He didn't say nothing. [Appellant] had said that he was talking to the man while the man was grabbing his hand. That he was talking to the man.

10
Q: Do you know what was said?

11
A: Yes. It was like, when the man came over there and grabbed him, he yell like "You better let me get out the car and let me leave." Then, then, the man is still grabbing him. And then, he is like, "If you don't let me go my boys will come over and kill you."

12
Prior to the trial, appellant's trial counsel reviewed Forrester's videotaped interview. At that time, he did not believe Forrester's statements on the tape to "undermine[] the legal theory of the prosecution's case against [appellant]," as he understood it. He viewed Forrester's quoting of appellant as saying, "You better let me leave this car or my friends will come over and kill you," as strengthening the prosecution's case. Later, in a pretrial interview with counsel, Forrester denied that appellant had made a statement about his friends killing Hanna.

13
Appellant was tried in the County Court, Westchester County. Forrester testified that at the time of the struggle he had heard appellant exclaim only, "Get away from the car." Forrester also testified that appellant later admitted to him that "[H]e like told the man to get away from the car before his boys come over here and kill him." Appellant's trial counsel did not attempt to impeach Forrester or to refresh his recollection with the videotaped statement that attributed the "let me get out . . . let me leave" exclamation to appellant. Rather, he sought to impeach Forrester with his denial in the pretrial interview that appellant had ever warned Hanna about the "boys" coming over and killing him. Forrester answered with the explanation that he had reviewed his videotaped statement and that it had refreshed his recollection. In a post-trial affidavit, appellant's trial counsel stated that he "did not confront [Forrester] with the video-tape because [he] perceived no distinction between the two versions" of the story.

14
Appellant was convicted of one count of felony murder in the second degree, two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, one count of attempted grand larceny in the fourth degree, and one count of criminal possession of a weapon in the second degree. Appellant moved to vacate the judgment pursuant to N.Y. Crim. Proc. Law § 440.10(h), contending that he had been denied his Sixth Amendment right to the effective assistance of counsel because of his attorney's failure to confront Forrester with the videotaped statement. Noting that appellant's "counsel at trial conducted a thorough and extensive cross examination" of Forrester and that "the videotape [was not] as compelling or damaging to the prosecution's case as [appellant] now urges," the Westchester County Court denied the motion. On a consolidated appeal from the judgment and the denial of the Section 440.10 motion, the Appellate Division affirmed. See People v. Farrington, 639 N.Y.S.2d 436, 436 (App. Div. 1996). The New York Court of Appeals denied leave to appeal. See People v. Farrington, 670 N.E.2d 453, 453 (N.Y. 1996).

15
Appellant then filed the instant habeas petition pursuant to 28 U.S.C. § 2254. The district court denied the petition, see Farrington v. Senkowski, 19 F. Supp. 2d 176, 181 (S.D.N.Y. 1998), but granted a certificate of appealability.

DISCUSSION

16
We review a district court's denial of a petition for a writ of habeas corpus de novo. See Einaugler v. State, 109 F.3d 836, 839 (2d Cir. 1997); Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).

17
a) Sufficiency of the Evidence

18
Appellant first argues that his convictions for attempted robbery and felony murder violate due process because the evidence was insufficient as a matter of law to support his attempted robbery convictions. Appellant contends that the government failed as a matter of law to meet its burden to show that he used physical force to retain the property he was attempting to steal.

19
"[A] state prisoner 'is entitled to habeas corpus relief [only] if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.'" Einaugler, 109 F.3d at 839 (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)). Appellant bears the burden of rebutting the presumption that all factual determinations made by the state court were correct. See 28 U.S.C. § 2254(e).

20
New York defines robbery as "forcible stealing. A person . . . commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking . . . ." N.Y. Penal Law § 160.00(1). In appellant's own videotaped pretrial statement, which was shown to the jury, he admitted that he struggled with Hanna over the keys and gearshift and tried to drive the car away with Hanna hanging on. See Farrington, 19 F. Supp. 2d at 181. This level of actual physical force was easily sufficient under New York law to elevate attempted larceny to attempted robbery. See People v. Santiago, 402 N.E.2d 121, 121 (N.Y. 1980) (finding level of physical force sufficient to sustain attempted robbery and felony murder convictions when defendant reached out window from moving train and attempted to snatch purse of woman standing on platform); see also N.Y. Penal Law § 160.10(3) (construing any forcible stealing of a motor vehicle as second degree robbery); id. § 160.15(3) (defining first degree robbery as forcible stealing in which one of crime's participants "in the course of the commission of the crime or of immediate flight therefrom . . . [u]ses or threatens the immediate use of a dangerous instrument").

21
b) Ineffective Assistance of Counsel

22
Appellant next claims that he was denied effective assistance of counsel because his trial attorney failed to use Forrester's prior videotaped statement and to object to allegedly erroneous jury instructions.

23
In assessing appellant's claim that his trial counsel's assistance was "so defective as to require reversal of a conviction," we follow the two-part test enunciated in Strickland v. Washington, 466 U.S. 668, 687 (1984). Appellant bears the burden of showing both that counsel's representation was so objectively deficient "that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment," and "that the deficient performance prejudiced the defense." Id. According to appellant, Forrester's videotaped statement supports the view that he was trying to leave the car once Hanna confronted him, rather than applying force to steal it. Appellant argues that it is reasonably likely that the jury would not have convicted him on the attempted robbery counts had the trial counsel presented this taped testimony to the jury.1  Thus, appellant contends, the convictions under each attempted robbery count and under the felony murder count must be overturned.

24
We do not decide whether counsel's performance was so "outside the wide range of professionally competent assistance" as to constitute ineffective assistance under the Sixth Amendment. Id. at 690. Appellant's trial counsel extensively cross-examined Forrester. He specifically impeached Forrester's testimony about appellant's exclamation that "my boys will come over and kill you" by referring to Forrester's denial in a pretrial interview that such a statement was made. Use of the videotape would of course have established Forrester's earlier confirmation of such a statement. There was reason, therefore, to fear use of the videotape. Nevertheless, counsel's affidavit states that he had either forgotten, or did not appreciate, the "critical difference" between Forrester's videotaped statement and his testimony. Moreover, the jury learned from Forrester that there was a videotape of Forrester confirming the "my boys . . . will kill you" statement, and much of the feared negative impact of the videotape occurred anyway. It is thus not clear that, "under the totality of the circumstances, [counsel] failed to exercise the skills and diligence that a reasonably competent attorney would provide under similar circumstances." Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996).

25
We need not resolve this issue, however. See Strickland, 466 U.S. at 693, 697 ("Even if a defendant shows that particular errors of counsel were unreasonable, . . . the defendant must show that they actually had an adverse effect on the defense[,] . . . . [and] there is no reason . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."). Assuming arguendo that trial counsel's conduct fell short of the constitutionally required assistance, we conclude that appellant was not prejudiced by his attorney's failure to confront Forrester with the videotaped statement.

26
To establish prejudice, appellant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. To determine whether appellant has met his burden, we must presume that the jury would correctly apply the governing legal standards in light of the totality of the evidence before it. See id. at 694-96.

27
In our view, use of the videotape would not have altered the outcome. Both Forrester's testimony and appellant's own videotaped admission established for the jury that appellant drove forward as he struggled with Hanna over control of the gearshift and keys. At this point, if appellant wanted to "leave," it was with the car. Only after the crash and the attempts to take the car failed could appellant have told Hanna to "let me get out" or "let me leave," and then as Hanna grabbed appellant and tried to pull him through the window. Appellant's struggle over the gearshift and keys and attempt to drive forward easily met the level of force sufficient under New York law to constitute robbery -- the "use of physical force upon another person for the purpose of . . . overcoming resistance to the taking of the property or to the retention thereof immediately after the taking." N.Y. Penal Law § 160.00; see also Santiago, 402 N.E.2d at 121 (upholding attempted robbery and felony murder convictions when defendant reached out window from moving train and attempted to snatch purse of woman standing on platform).

28
Indeed, in summation, the prosecutor relied precisely on this application of force to establish robbery by arguing:

29
Robbery . . . is forcible stealing.

30
. . .

31
Now, force in a robbery . . . is not limited to the use of a gun or the use of a knife . . . . This can be any kind of physical force which is used to overcome the resistance to the taking or to retaining the property immediately after the taking.

32
. . .

33
[W]hen the chain of events first began with Michael Farrington running over to this car and getting inside . . . the People do not disagree with defense in this case that this started out as a plan to commit larceny.

34
. . .

35
Michael Farrington's conscious decision when Joseph Hanna arrives back at the car and reaches inside to stop Mr. Farrington from taking his car, his conscious decision while that car is backing up and then crashing[,]  . . . his conscious decision to take that car out of reverse, to put it into drive and to drive that car forward with Mr. Hanna reaching into that car was the first use of force in this attempted robbery.

36
This conscious decision to shift gears after Mr. Hanna returned to his car and to move it forward in an effort to continue this attempt to steal his property while Mr. Hanna struggled to get it back is physical force used in furtherance of this attempt to steal property.

37
The prosecution thus relied upon appellant's use of force against Hanna in fighting for control of the gearshift and keys and in attempting to drive away to elevate the attempted larceny to attempted robbery. It would hardly have been a persuasive answer to show that appellant may have expressed a desire to escape as Hanna tried to pull him through the window after the attempt at robbery had failed. A jury applying the correct legal standard would not, therefore, have changed its verdict had Forrester's videotaped statement been introduced.

38
Moreover, even if the jury were to credit the "let me get out . . . let me leave" statement, it would not absolve appellant of either first degree attempted robbery or felony murder under New York law. In New York, "[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [c]auses serious physical injury to any person who is not a participant in the crime." N.Y. Penal Law § 160.15(1) (emphasis added). Similarly, the New York felony murder statute reads: "A person is guilty of murder in the second degree when . . . [a]cting either alone or with one or more other persons, he commits or attempts to commit robbery . . . and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant . . . causes the death of a person other than one of the participants . . . ." N.Y. Penal Law § 125.25(3) (emphasis added).

39
Thus, even if appellant were deemed to be trying to escape from the car after he initially used force to steal it, he would be in "immediate flight" from the crime and therefore guilty of first degree attempted robbery and felony murder under New York law. See, e.g., People v. Slaughter, 583 N.E.2d 919, 922-23 (N.Y. 1991) (applying felony murder "immediate flight" provision to high-speed chase ensuing over 15 minutes after crime at location over one and one-half miles from scene of crime); People v. Falu, 525 N.Y.S.2d 902, 904 (App. Div. 1988) (holding evidence "both legally and factually sufficient" to support judge's finding that defendant who was car passenger in high speed chase was in "immediate flight").

40
Appellant also contends that he was denied effective assistance because his trial counsel failed to object to portions of the jury instructions. The trial court charged the jury: "According to the law, a person steals property when, with intent to deprive another of property or to appropriate the property to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." These instructions on larceny mirror the statutory language, see N.Y. Penal Law § 155.05, and were therefore not "clearly constitutionally deficient," Bloomer v. United States, 162 F.3d 187, 194 (2d Cir. 1998).

41
Nevertheless, appellant correctly notes that for there to be a "deprivation" of property so as to constitute larceny under New York law, the property must "be withheld . . . permanently or for so extended a period . . . that the major portion of its economic value or benefit is lost. . . ." N.Y. Penal Law § 155.00(3). Because specific instructions to the jury with "permanently" in the statutory definition of larceny might have helped appellant on the theory that he and his friends intended not to steal the car permanently but only to go on a "joy ride," appellant argues that he was not accorded the effective assistance of counsel.

42
However, the failure to object to the challenged language was part of appellant's trial counsel's strategy to concede guilt of attempted larceny. Indeed, appellant's attorney specifically stated in summation: "I ask you to find Michael Farrington guilty of attempted grand larceny." This concession was made to persuade the jury to acquit on the more serious charges of attempted robbery and felony murder by arguing that a non-forcible theft occurred. This course was a plausible strategic option in a case where the evidence and predatory nature of the crime offered little hope of an acquittal on all counts. It was, therefore, "virtually unchallengeable," Strickland, 466 U.S. at 690, and we will not overturn the jury's verdict for counsel's failure to object to the judge's instructions.

43
We also find no merit in appellant's argument that he was denied effective assistance because his trial counsel did not attempt to persuade the judge to tailor the instructions specifically to his defense to the robbery charge. The defense's theory of the case was clearly presented in summation, and any possible confusion arising from the charge's characterization of the defense's position was therefore harmless.

44
c) Deprivation of a Fair Trial

45
Finally, appellant claims that the prosecutor's summation to the jury deprived him of a fair trial. We agree with the district court that federal habeas review of these claims is barred because appellant "defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Before the district court, appellant argued only that the procedural default doctrine did not apply because he was "actually innocent" of the crimes at issue. See generally Sawyer v. Whitey, 505 U.S. 333 (1992). Because Farrington has made no showing of actual innocence, we apply the procedural default rule and reject this argument.2

46
Finding no error of constitutional magnitude, we affirm.

Notes:

1
  The briefing of the parties appears to assume that, if appellants' counsel had confronted Forrester with the videotape, the "let me get out . . . let me leave" statement would have come in for the truth of the matter stated. The issue is not that simple, however.
Confronted with the videotape, Forrester might have denied that appellant ever said those words and have stated that his earlier statement to the contrary was incorrect. In those circumstances, the videotape would be admissible only to impeach Forrester, and not for the truth of the matter stated. See People v. Duncan, 385 N.E.2d 572, 576 (N.Y. 1978) (stating that prior inconsistent statement "bears only upon the credibility of the witness"); Richard T. Farrell, Richardson on Evidence § 6-411, at 405 (11th ed. 1995) (New York evidence treatise).
Or, Forrester might have confirmed that he heard appellant say "let me get out . . . let me leave" as Hanna attempted to pull him through the window. Appellant's exclamation in those circumstances would be hearsay but almost surely admissible for the truth of the matter stated as a spontaneous declaration or excited utterance. See People v. Edwards, 392 N.E.2d 1229, 1231 (N.Y. 1979) (explaining that "[o]ne of the better-known exceptions to the injunction against the reception of hearsay testimony permits the introduction of a spontaneous declaration or excited utterance"); People v. Caviness, 342 N.E.2d 496, 499 (N.Y. 1975) (same); Richardson on Evidence § 8-605, at 639 (foundation for excited utterance is that "the declarant was under the stress of excitement caused by an external event sufficient to still his reflective faculties").
Or, and perhaps most likely, Forrester might have confirmed that, in a conversation that took place at appellant's home after the killing, appellant told him that appellant had told Hanna to "let me get out." At trial, Forrester testified that the only thing he heard appellant say to Hanna at the time of the crime was, "Get away from the car." Forrester's testimony about appellant warning Hanna that his "boys" would come over and kill him was that appellant told Forrester of the statement in a subsequent conversation at appellant's house. The videotape is not inconsistent with this version. On the pertinent portion of the tape, Forrester is not asked, "Did you hear what Farrington said to Hanna?" Rather, he was asked, "Do you know what was said?", to which he answered with a description of the "let me get out" and "my boys . . . will kill you" statements. While the latter was admissible as an admission, the former would be admissible only to complete the context in which the admission was made, see Thrower v. Smith, 406 N.Y.S.2d 513, 516 (App. Div. 1978), a discretionary trial court decision.
Given our view that admission of the "let me get out . . let me leave" statement for the truth stated would not have altered the outcome of the trial, we will not dwell on these niceties further.

2
  Even were we to consider appellant's claim on the merits, we do not deem his counsel's failure to object to these charges to be constitutionally ineffective. The prosecutor's allegedly inflammatory comments -- asking the jury not to "compromis[e] [its] integrity" and not to be talked "into becoming a party to a misdemeanor plea bargain" -- were made in response to the defense strategy to concede liability for larceny in the hope of escaping liability for the felony offenses. The summation was not in any respect so inflammatory as to cause us to question the verdict on federal collateral review.


K. AMANDA WILSON, D.D.S., M.D.S., Petitioner-Appellant,
v.
BOARD OF DENTAL EXAMINERS, Respondent-Appellee.
No. 28399.
Intermediate Court of Appeals of Hawaii.
May 21, 2009.
On the briefs:
Stanley E. Levin and Susan K. Dorsey (Davis Levin Livingston Grande) for Petitioner-Appellant.
David A. Webber, Lei S. Fukumura, and Deborah Day Emerson, Deputy Attorneys General, State of Hawai`i, for Respondent-Appellee.

SUMMARY DISPOSITION ORDER
WATANABE, Acting C.J., NAKAMURA, and FUJISE, JJ.
Petitioner-Appellant K. Amanda Wilson (Wilson) appeals from the "Decision and Order Affirming Board's Final Order, Filed July 7, 2006" and "Judgment" both entered by the Circuit Court of the First Circuit[1] (circuit court) on January 3, 2007, which affirmed the decision of Respondent-Appellee Board of Dental Examiners (Board) to deny Wilson's application for license to practice dentistry in the State of Hawai`i.
Wilson originally applied for Hawai`i licensure in 2004 but did not receive a passing score on her dental examination. The following year, however, applicants had limited access to licensure via examination because the Board was in the process of adopting a new exam. To cover the interim period before the new exam was adopted, the legislature provided several alternate pathways to licensure by enacting Act 121, 2005 Haw. Sess. L. 320, which was codified as Hawaii Revised Statutes (HRS) § 448-10 (Supp. 2005) .[2] Wilson actively lobbied for Act 121.
In June 2005, Wilson applied for a dental license pursuant to HRS § 448-10 (c) (3) (Supp. 2005), a provision that allowed a dental specialist, such as an orthodontist, to bypass the traditional exam and receive a Hawai`i license by virtue of his or her credentials (licensure-by-credentials statute). The Board denied Wilson's application, reasoning that her three-year graduate orthodontics studies in Connecticut, which concluded in 2004, did not count towards the HRS § 448-10(c)(3)(C)(iv) requirement of "[h]aving been lawfully engaged in the practice of dentistry for at least three years preceding the date of the application [.]" The Board concluded that this provision "require[s] an applicant to be licensed, practicing independently and outside of the academic arena, bearing primary responsibility for the patient's safety."
Although the Board accepted Wilson's ten months of licensed practice as an orthodontist in California from August 2004 to June 2005, it is undisputed that Wilson would not fulfill the three-year practice-of-dentistry requirement if her graduate training was excluded. The licensure-by-credentials statute, HRS § 448-10(c)(3), was automatically repealed four months after its enactment, when the Board adopted a new dental examination in October 2005.
Wilson appealed to the circuit court, arguing that the Board erred because under the statute generally defining "[d]entistry[,] " HRS § 448-1 (1993),[3] "[a] person practices dentistry, within the meaning of this chapter" when, among other things, he or she "engages in any of the practices included in the curricula of recognized and approved dental schools or colleges." Thus, Wilson contended, when HRS §§ 448-1 and 448-10 are read together, her graduate studies in Connecticut constituted the practice of dentistry under Hawai`i law.
The circuit court affirmed, reasoning that the Board's interpretation of HRS § 448-10 (c) (3) (C) (iv) was "not palpably erroneous" because the statute "does not derive meaning from HRS § 448-1 regarding the requirements of post-graduate degrees or lawful practice outside the state which are independent qualifications to meet the licensure by credentials criteria[.]"
Wilson advances the following points of error:
(1) "The [c]ircuit [c]ourt erred by affirming the Board's final order on grounds that the statutory interpretation of HRS § 448-10 excluded [Wilson] from licensure by credential" because "as a licensed dentist in a graduate specialty, she satisfie[d] the definition of the `practice of dentistry' for purposes of the credentialing statute";
(2) "The circuit court erred by affirming an agency decision that contravenes the legislature's manifest purpose" (formatting altered) because "[t]hroughout the agency and circuit court proceedings below, [Wilson] contended that she wrote the bill that eventually became Act 121. As she was the source of the amendment, it is inconceivable that her situation was not expressly considered and included"; and
(3) "The circuit court erred by affirming an agency decision that denied [Wilson's] right to due process" (formatting altered) because "the Board was not comprised of impartial adjudicators and therefore they should not have been permitted to determine whether she should receive her dental specialist license by credential" and the circuit court "failed to recognize that `an appearance of impropriety' is the proper standard in evaluating the record in this case."
Upon a careful review of the record and the briefs submitted by the parties, and having given due consideration to the case law and statutes relevant to the arguments advanced and the issues raised, we disagree with Wilson and resolve her points of error as follows:

A.
The circuit court did not err in affirming the Board's final order. Initially, Wilson misconstrues HRS § 448-1 (1993), which broadly defines the practices, acts, and operations that constitute "[d]entistry" over which the Board has regulatory authority and which require Hawai`i licensure. HRS § 448-2 (1993). Although HRS § 448-1 states that a person "practices dentistry" if, among other things, he or she "engages in any of the practices included in the curricula of recognized and approved dental schools or colleges [,] " HRS § 448-1, on its face, does not state, as Wilson argues, that practices, acts, and operations engaged in as part of a clinical graduate dental school curriculum qualify as "lawfully engag[ing] in the practice of dentistry" for purposes of HRS § 448-10 (c) (3).
As such, the Board did not palpably err in concluding that Wilson did not meet the HRS § 448-10 (c) (3) (C) (iv) requirement of "[h]aving been lawfully engaged in the practice of dentistry for at least three years preceding the date of the application [ .] " See Aio v. Hamada, 66 Haw. 401, 407, 664 P.2d 727, 731 (1983) ("[W]here an administrative agency is charged with the responsibility of carrying out the mandate of a statute which contains words of broad and indefinite meaning, courts accord persuasive weight to administrative construction and follow the same, unless the construction is palpably erroneous.").

B.
The Board's final order does not contravene the legislature's manifest purpose. HRS § 448-10 (c) (3) was not enacted to guarantee Wilson's Hawai`i licensure. Rather, the legislature enacted the licensure-by-credentials statute in June 2005, along with other options, as an interim measure to bypass the Hawai`i dental exam and provide applicants with alternate pathways to licensure until the Board approved a new exam. See 2005 Haw. Sess. Laws Act 121, § 7 at 323 ("[O]n the date that the board of dental examiners approves the American Board of Dental Examiners (ADEX) examination, section 448-10, [HRS], shall be repealed."); Conf. Comm. Rep. No. 42, in 2005 Senate Journal, at 997 (stating that Act 121 was enacted "to give Hawai`i's citizens greater access to appropriate dental care and to assure that applicants for licensure as dentist are not deprived of the opportunity to take an examination for an indefinite or extended period of time").
Although Wilson may have actively lobbied for Act 121, her personal comments have no persuasive authority. See Gillan v. Gov't Employees Ins. Co., 119 Hawai`i 109, 121, 194 P.3d 1071, 1083 (2008) ("Stray comments by individual legislators, not otherwise supported by statutory language or committee reports, cannot be attributed to the full body that voted for the bill.") (internal quotation marks and brackets omitted); Dines v. Pac. Ins. Co., 78 Hawai`i 325, 332, 893 P.2d 176, 183 (1995) ("[L]egislative studies by nonmembers of the legislature do not have the probative value of committee reports or debates for purposes of establishing `legislative intent.'").

C.
There were no deficiencies in the Board's review process. As the hearings officer for Wilson's contested case hearing concluded, "there was no evidence to substantiate [Wilson's] suggestion that the Board denied her license application in retaliation for her involvement in the passage of the law providing for licensure by credential (Act 121)." Moreover, Wilson had a full and fair opportunity to appeal the Board's decision to the circuit court and pursue a secondary appeal before this court.
Therefore, the January 3, 2007 "Decision and Order Affirming Board's Final Order, Filed July 7, 2006" and the January 3, 2007 "Judgment" are hereby affirmed.
NOTES
[1]  The Honorable Eden Elizabeth Hifo presided.
[2]  At the time Wilson applied, HRS § 448-10 (Supp. 2005) stated, in part:

Examination; time. [This section shall be repealed on the date that the board of dental examiners approves the American Board of Dental Examiners (ADEX) examination. L 2005, c 121, §7. See also note below.] (a) Except as provided in subsection (c), the board shall require all applicants to take the state written and practical examination on dentistry.... Two examinations shall be held each calendar year.
....
(c) If the board determines that two state written and practical examinations on dentistry will not be or have not been administered pursuant to subsection (a) during the calendar year, an applicant shall be eligible for licensure under this chapter:
(1) If the applicant takes one of the following four regional examinations given between February 1, 2004 and the date of availability of the American Board of Dental Examiners (ADEX) examination, by:
(A) The Western Regional Examining Board;
(B) The Central Regional Dental Testing Service, Inc.;
(C) The Southern Regional Testing Agency, Inc.; or
(D) The North East Regional Board of Dental Examiners, and passes it;
(2) If the applicant takes and passes the American Board of Dental Examiners (ADEX) examination approved by the board; or
(3) By credential under this paragraph if the applicant is a dental specialist and:
(A) Has graduated from an accredited dental specialty education program in orthodontics, endodontics, pedodontics, periodontics, oral surgery, oral radiology, public health dentistry, or oral medicine/oral pathology;
(B) Submits to the board a completed application and all required fees;
(C) Submits to the board verification of:
(i) Graduation from a general dental education program ...;
(ii) Graduation from a post-graduate specialty program ...;
(iii) A current active license issued by another state that is not revoked, suspended, or otherwise restricted;
(iv) Having been lawfully engaged in the practice of dentistry for at least three years preceding the date of the application, with a minimum of one thousand hours of dentistry practice each year;
(v) Completion of a minimum of thirty-two hours of continuing education in the applicant's dental specialty within the preceding two-year period;
(vi) Not having been subject to disciplinary action by any jurisdiction in which the applicant is or has been previously licensed to practice dentistry...;
(vii) Not having any felony convictions of any kind and having no other criminal convictions...;
(viii)Registration status with the federal Drug Enforcement Administration and submits a self-query report from the National Practitioner Data Bank...; and
(ix) Passage of parts I and II of the National Board Dental Examination; and
(D) Agrees to practice only as a dental specialist, within the area of the applicant's specialization.
(Emphases added.)
[3]  At the time Wilson applied, HRS § 448-1 (1993) stated, in relevant part:

Dentistry defined; exempted practices. A person practices dentistry, within the meaning of this chapter, who represents oneself as being able to diagnose, treat, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of the human teeth, alveolar process, gums, or jaw, or who offers or undertakes by any means or methods to diagnose, treat, operate or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of the same, or to take impressions of the teeth or jaws; or who owns, maintains, or operates an office for the practice of dentistry; or who engages in any of the practices included in the curricula of recognized and approved dental schools or colleges.
Dentistry includes that part of health care concerned with the diagnosis, prevention, and treatment of diseases of the teeth, oral cavity, and associated structures including the restoration of defective or missing teeth. The fact that a person uses any dental degree, or designation, or any card, device, directory, poster, sign, or other media whereby one represents oneself to be a dentist, shall be prima facie evidence that the person is engaged in the practice of dentistry.
(Emphases added. )


634 F.Supp. 1468 (1986)
UNIVERSAL CITY STUDIOS, INC. and Merchandising Corporation of America, Inc., Plaintiffs,
v.
The T-SHIRT GALLERY, LTD., Ra Productions and Bob Edelson, Defendants.
No. 85 Civ. 7126 (JES).
United States District Court, S.D. New York.
May 19, 1986.
*1469 *1470 *1471 *1472 Evan L. Gordon, New York City, for plaintiffs.
Kazlow & Kazlow, New York City, for defendants; Amos Weinberg, of counsel.

OPINION AND ORDER
SPRIZZO, District Judge:
Plaintiffs, the producer and licensing agent of the "Miami Vice" television series, seek a preliminary injunction enjoining defendants from selling "Miami Mice" t-shirts.[1] Plaintiffs seek relief primarily on the grounds that the defendants have violated New York's unfair competition law relating to misappropriation. Alternatively, plaintiffs argue that the defendants have violated section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (1982).
The Court has received briefs from both parties and has held an evidentiary hearing. At the hearing, the Court viewed excerpts from the "Miami Vice" television series, heard testimony from several witnesses, and accepted into evidence various exhibits relating to both the t-shirts and the television series. After considering all the evidence and arguments of counsel in this action, the Court concludes that plaintiff's application for a preliminary injunction must be denied for the reasons set forth infra.

FACTS
Plaintiff Universal City Studios Inc. ("Universal") is the producer of the television series "Miami Vice." Universal holds a copyright on the series and has also applied for a trademark registration for the logo "Miami Vice." See Transcript of Hearing ("Tr.") at 20-21; Pl. Ex. 25 & 26. This logo is displayed at the beginning of every "Miami Vice" show and is printed in stylized block letters with the word "Miami" above the word "Vice."
Plaintiff Merchandising Corporation of America, Inc. ("Merchandising") is the exclusive merchandising arm of Universal and grants licenses to manufacturers and distributors, authorizing them to produce various products relating to the "Miami Vice" television series. See Tr. at 20. Approximately fifteen such merchandising licenses have already been issued for "Miami Vice" products. These licenses cover a variety of products, including t-shirts. See id. at 21-22.[2]
It is undisputed that "Miami Vice" is one of the most popular shows on television today. The show revolves around two main characters, Detective Sonny Crockett, who is white, and Detective Ricardo Tubbs, who is black. These detectives battle *1473 against drug smugglers, mob bosses, and many other evil criminal figures. Plaintiffs' exhibits, a collection of articles about "Miami Vice," as well as selected videotaped segments from the series, establish that the show's major themes are crime and violence, with sexual overtones thrown in. See Pl. Ex. 1-21.
"Miami Vice" is promoted as a highly stylized television series with an art deco, flashy look. See Tr. at 5, 11. Pastel color patterns predominate on the filming set; earth tones are never permitted. See id. at 8. Crockett and Tubbs wear fashionable clothing in tropical pastel colors, adding to the overall style of the show. Crockett generally wears a single-breasted jacket, collarless shirt, and pants with no belt. See id. at 6. Tubbs, on the other hand, tends to wear a notch-collar shirt, a thin tie, and a double-breasted suit. See id. at 7. Finally, one of the most important elements in the overall style of the show is that the music and lyrics of popular rock-and-roll songs are blended into the action on the set and take the place of extended dialogue. See id. at 8.
Defendant T-Shirt Gallery ("the Gallery") manufactures and distributes, inter alia, five different types of "Miami Mice" t-shirts, and holds a New York State trademark and a federal copyright for the cartoon drawings of "Miami Mice."[3]See Tr. at 68; Def.Ex. B & C. Each of the t-shirts has the words "Miami Mice" printed across the top of the t-shirt in non-stylized block letters over a diamond shaped design. The words "T-Shirt Gallery" are printed near the bottom of the shirts.
Each of the t-shirts features two comical cartoon mice, who wear sun glasses and dress in clothing similar to the costumes of Crockett and Tubbs. Thus, one mouse, who has an "Afro" hairstyle, is wearing a double-breasted suit (as does Tubbs) while the other mouse wears a t-shirt and a single breasted suit (as does Crockett). Furthermore, the t-shirts depict these mice in various settings: on a beach, in New York City, leaning against an expensive sports car, and at a dance club. See generally Pl. Ex. 27. Plaintiffs allege these settings correspond to typical settings in the Miami Vice television series. See Plaintiffs' Post Hearing Brief at 4. Finally, the clothing of the mice, the "Miami Mice" logo, and any buildings or cars appearing in the t-shirts, are all generally colored in with pastel colors.
Defendant Bob Edelson is a merchandising agent for the Gallery. See Tr. at 36.[4] According to Edelson's deposition, Edelson and Markku Anunio, a.k.a. "Finn," the president of the Gallery, had an informal verbal agreement that Edelson would get 25% of the profits from any merchandising deals he arranged for "Miami Mice" products. See Tr. at 36. Pursuant to that agreement, Edelson sent a letter dated August 8, 1985, to Universal in which he offered to seek the "movie-TV-merchandising rights" to "Miami Mice." In the letter, Edelson explained that "Miami Mice is an animated parody of Miami Vice," and that he thought Universal would have the resources to develop it "into a sophisticated animated crime-fun TV show." Universal replied by filing the present action.

ANALYSIS
A preliminary injunction is proper only when the plaintiff establishes possible irreparable injury, plus either (a) probability of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the plaintiffs' favor. See Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 206-07 (2d Cir.1979); see also Sonesta International Hotels Corp. v. Wellington Associates, 483 F.2d 247, 250 (2d Cir.1973).
In cases which involve unfair competition and Lanham Act claims, irreparable injury will be presumed if the plaintiffs *1474 first establish a probability of success on the merits. See American Home Products v. Johnson Chemical Co., 589 F.2d 103, 106 (2d Cir.1978); Russ Berrie & Co. v. Jerry Elsner Co., 482 F.Supp. 980, 989-990 (S.D.N.Y.1980); see also Standard & Poor's Corp. v. Commodity Exchange, 683 F.2d 704, 708 (2d Cir.1982) (in Lanham Act claim, a showing of likelihood of confusion, which is an essential element of success on the merits, will also establish the requisite risk of irreparable harm); cf., Wainwright Securities, Inc. v. Wall Street Transcript Corp., 558 F.2d 91, 94 (2d Cir.1977) (court may presume irreparable injury in copyright infringement action if prima facia case of infringement is made out). Thus, the Court will first discuss whether the plaintiffs have demonstrated a probability of success on the merits before turning to the issues of irreparable injury and balance of hardships.

I. PROBABILITY OF SUCCESS ON THE MERITS

A. New York Unfair Competition Claim

Plaintiffs' principal argument offered in support of their application for a preliminary injunction is that the defendants have violated the misappropriation branch of New York's unfair competition law. The New York law of unfair competition is a "broad and flexible doctrine" encompassing "any form of commercial immorality." See Roy Export Co. v. Columbia Broadcasting System, 672 F.2d 1095, 1105 (2d Cir.) (quoting Metropolitan Opera Assoc. v. Wagner-Nichols Recorder Corp., 199 Misc. 786, 792-96, 101 N.Y.S.2d 483, 488-93 (Sup.Ct.1950), aff'd, 279 A.D. 632, 107 N.Y.S.2d 795 (1951) (per curiam), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982)). The misappropriation branch of New York's unfair competition law generally concerns the taking and use of the plaintiff's property to compete against the plaintiff. See id.; see also International News Service v. Associated Press, 248 U.S. 215, 239, 39 S.Ct. 68, 63 L.Ed. 211 (1918). Thus, a defendant can be liable for unfair competition if he misappropriates the "skill, expenditures, and labors of a competitor." See Flexitized, Inc. v. National Flexitized Corporation, 335 F.2d 774, 781 (2d Cir.1964) (quoting Electrolux Corp. v. Val-Worth, Inc., 6 N.Y.S.2d 556, 567, 190 N.Y.S.2d 977, 986, 161 N.E.2d 197, 203 (1959)).
In this case, plaintiffs argue that defendants have misappropriated from the Miami Vice show; (a) the settings, (b) the style, dress and essential expressions of the lead characters, (c) the color patterns and (d) the title. See Plaintiffs Post-Hearing Brief at 4, see also Tr. at 53.[5] Plaintiffs, however, have failed to establish a probability of success on the merits on this claim because this claim is preempted by the federal copyright laws. See 17 U.S.C. § 301 (1982); see also Warner Bros. v. American Broadcasting Co., 720 F.2d 231, 247 (2d Cir. 1983)[6].
Under § 301, a state law claim is preempted by the federal copyright laws if *1475 two conditions are satisfied: (1) the subject matter of the work in which the state law rights are asserted comes within the subject matter of the copyright laws; and (2) the state law rights asserted in the work are equivalent to the exclusive rights protected by the federal copyright laws. See Harper & Row, Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 200 (2d Cir. 1983), rev'd on other grounds, ___ U.S. ___, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Mayer v. Josiah Wedgwood & Sons, Ltd., 601 F.Supp. 1523, 1531 (S.D.N.Y.1985); 1 M. Nimmer, Nimmer on Copyright ("Nimmer") § 1.01[B], at 1-9. The first condition under § 301 is clearly satisfied here because the "Miami Vice" television series comes within the subject matter of federal copyright. The subject matter of copyright consists of any "original works of authorship fixed in any tangible medium of expression" and includes "motion pictures and other audiovisual works." See 17 U.S.C. § 102(a) (1982). Indeed, plaintiffs have argued in this action that they have a valid copyright for the "Miami Vice" television series. See Tr. at 20-21.[7]
Turning to the second condition for federal preemption under § 301, a state law cause of action is preempted only if the state law creates rights that are "equivalent to any of the exclusive rights within the general scope of copyright." See 17 U.S.C. § 301(b)(3). A state right is equivalent to copyright if the state right "is infringed by the mere act(s) of reproduction, performance, distribution or display." See Mayer supra, 601 F.Supp. at 1535 (quoting Nimmer, supra, § 1.01[B][3], at 1-11-12). On the other hand, if the state law violation requires an extra qualitative element beyond those acts, preemption will not apply. See Harper & Row, supra, 723 F.2d at 200; Nimmer, supra, § 1.01[B] at 1-12. Since the unfair competition complained of here consists simply of the misappropriation and reproduction of the style and characters of plaintiffs' television series into t-shirt form, the second condition under § 301 is satisfied and plaintiffs' New York unfair competition claim is preempted. See Walker v. Time Life Films, Inc., 784 F.2d 44, 53 (2d Cir.1986); Warner Bros., supra, 720 F.2d at 247; Durham Industries, Inc. v. Tomy Corp., 630 F.2d 905, 918-19 (2d Cir.1980); Mayer, supra, 601 F.Supp. at 1535-36; Giangrasso v. CBS, 534 F.Supp. 472, 478 (E.D.N.Y.1982).
Plaintiffs argue, however, that their claim of unfair competition includes allegations of commercial immorality and an unjustifiable attempt to profit from the efforts of another, see e.g., Metropolitan Opera Assoc., supra, 199 Misc. at 792-96, 101 N.Y.S.2d at 488-93, which are additional elements to their cause of action negating preemption. See Plaintiffs' Supplemental Memorandum of Law at 4. This argument is not persuasive. As Judge Leisure noted in Mayer, supra, 601 F.Supp. at 1535, commercial immorality is not an extra element of the cause of action for misappropriation *1476 under New York law, but merely a label attached to the alleged infringing conduct. The use of that label in no way detracts from the fact that the misappropriation claim seeks to protect the same rights which the federal copyright laws are designed to protect. To hold otherwise would allow the state to provide a cause of action for the same conduct which may be protected under federal copyright laws, merely because the state deems the conduct "unfair" or "immoral." Such an interpretation would clearly circumvent Congress' purpose in enacting § 301 to "avoid the development of any vague borderline areas between State and Federal protection." See Harper & Row, supra, 723 F.2d at 200 (quoting H.R.Rep. No. 1476, 94th Cong., 2d Sess. 130, reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5746).[8]

B. Lanham Act Claim

Plaintiffs argue in the alternative that defendants have violated section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), by "intend[ing] to take advantage of plaintiffs' efforts and to deceive the public into believing that the [t-shirts] are either authorized by or connected with the plaintiffs and the television series." Plaintiff's Memorandum of Law, at 7.[9] To succeed in an action for trademark infringement or unfair competition under section 43(a), plaintiffs must establish a likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or confused as to the source or sponsorship of the goods in question. See Universal City Studios, Inc. v. Nintendo Co.; 746 F.2d 112, 115 (2d Cir.1984), Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978) (per curiam), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979); Polaroid Corp. v. Polaroid 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). In determining whether there is a likelihood of confusion, the Court must consider, inter alia: (1) the strength of plaintiffs' mark, (2) the *1477 proximity of the products; (3) the sophistication of the likely consumers; (4) the degree of similarity between plaintiffs' and defendants' marks; (5) evidence of actual confusion; and (6) defendants' good or bad faith in adopting the marks. See Nintendo, supra, 746 F.2d at 116; Polaroid Corp., supra, 287 F.2d at 495.
The first two factors listed above tend to somewhat favor plaintiffs' position. Thus, defendants do not dispute the popularity of plaintiffs' television series. Furthermore, it is undisputed that there is a proximity between the products, at least in so far as plaintiffs' licenses for t-shirts have the potential for competition with the "Miami Mice" t-shirts. As to the third factor, the sophistication of the likely consumers, this appears to be a neutral factor given that neither party has presented any evidence on this issue.
Both the fourth and fifth factors, however, favor defendants' position and tip the balance against the issuance of a preliminary injunction. While there are similarities between the "Miami Mice" t-shirts and the "Miami Vice" television series, i.e., the titles,[10] the casual dress of the characters, the pastel colors, and the various beach and dance club scenes, the Court concludes that the t-shirts and the television series are not sufficiently similar to warrant a finding of a likelihood of consumer confusion. In determining whether a likelihood of consumer confusion exists, it is proper for the Court to compare the "total concept and feel" of the two works. See Nintendo, supra, 746 F.2d at 116.[11] In "Miami Vice," the two lead characters are portrayed as tough, courageous, and stylish detectives who fight against notoriously evil criminal figures. The major themes of "Miami Vice" are adult themes of crime, violence, and sex. As one of plaintiffs' exhibits described the television series, "Miami Vice" is "the most intensely serious cop show on TV." See Pl. Ex. 1 (Time, September 16, 1985, at 61). In contrast, the "Miami Mice" t-shirts lightheartedly focus on two comical mice who do not at all resemble the detectives in "Miami Vice" and who do not evoke the themes of crime and violence.[12]
Moreover, the t-shirts' mouse-like characters, coupled with the title "Miami Mice," clearly parody the serious, highly stylized nature of the television series. The strength of this parody highlights the differences between the two products and should further dispel any confusion on the part of consumers that plaintiffs manufactured, authorized sponsored, or were in any way connected with the t-shirts. See Nintendo, supra, 746 F.2d at 116; cf. Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. 785, 790 (E.D.N.Y.1983). In sum, the Court concludes that the conceptual *1478 differences between defendants' t-shirts and the plaintiffs' television series cast sufficient doubt on whether a likelihood of consumer confusion exists, such that the Court cannot find that plaintiffs have established a probability of success on the merits of their Lanham Act claim.
This conclusion is in substantial accord with a decision rendered by Judge Aronovitz in the Southern District of Florida, which denied these same plaintiffs' motion for a preliminary injunction against another producer of "Miami Mice" t-shirts. See Universal City Studios v. Casey & Casey, Inc., 622 F.Supp. 201 (S.D.Fla.1985). The "Miami Mice" t-shirts in Casey were very similar to the defendants' t-shirts in this action.[13] In Casey, the Court concluded that the "cartoon depiction of two mouse-like figures, attired in casual dress clothing similar to the fashions favored by the two leading characters in the `Miami Vice' series," were not sufficiently similar to plaintiffs' television series and related products to warrant a preliminary injunction. See id. at 205. Moreover, in connection with a claim for copyright infringement raised by plaintiffs' complaint in that action, the Casey court noted that the t-shirts and the television series were not substantially similar. This finding was based in part on Judge Aronovitz's observation that the comical mice clearly differed from the "Miami Vice" characters who plaintiffs portrayed "as the embodiment of style, courage, and determination." See id. at 206.
The Court's conclusion that plaintiffs in the instant action have failed to establish a probability of success on the merits of their Lanham Act claim is bolstered by the absence of any survey evidence indicating that consumer confusion actually occurred. Although the plaintiffs need only demonstrate a likelihood of confusion and not actual confusion to warrant equitable relief, see Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 79 (2d Cir. 1981), the Court may properly infer that there is no likelihood of consumer confusion from this absence of survey evidence. See Tetley, Inc., supra, 556 F.Supp. at 791. This is especially true where, as here, a likelihood of confusion is not obvious due to substantial dissimilarities between the products. See, e.g., Nintendo, supra, 746 F.2d at 117; Mattel, Inc. v. Azrak-Hamway, Int'l., Inc., 724 F.2d 357, 361 (2d Cir.1983) (per curiam).
Plaintiffs argue, however, that the defendants in bad faith deliberately copied plaintiffs' marks and that the Court should presume a likelihood of confusion from this conduct. See Plaintiffs' Memorandum of Law, at 5. The Second Circuit has recognized that evidence of intentional copying raises a presumption that the second comer intended to create consumer confusion and succeeded. See Warner Bros., supra, 720 F.2d at 246-47. While it is clear that the defendants were influenced by the "Miami Vice" television series, see Tr. at 69-71, and that defendants expected that the success of the t-shirts would, in part, be attributable to the popularity of the television series, see id. at 38-39, 45, the evidence does not support plaintiffs' argument that the defendants copied plaintiffs' marks with the intent to create consumer confusion.[14] Since defendants *1479 did not intend to copy plaintiffs' television series so as to cause a likelihood of consumer confusion, the presumption that consumer confusion will occur is inapplicable.[15]Compare, Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366 (S.D.N.Y.1979), aff'd, 604 F.2d 200 (2d Cir.1979). Moreover, even assuming arguendo that the presumption of consumer confusion arose on the facts of this case, that presumption has been rebutted by the differences between the t-shirts and the television series and by the absence of any survey evidence. Cf. Nintendo, supra, 746 F.2d at 117.[16]

*1480 II. IRREPARABLE INJURY AND BALANCE OF HARDSHIPS
Since plaintiffs have failed to establish a probability of success on the merits, plaintiffs must establish sufficiently serious questions going to the merits making it a fair ground for litigation, irreparable injury, and a balance of hardships tipping decidedly in their favor to succeed in their preliminary injunction motion. See Dallas Cowboys, supra, 604 F.2d at 206-07.
Plaintiffs have not demonstrated irreparable injury. The Court will not presume irreparable injury in the absence of a showing of a probability of success on the merits. Cf. Windsor Industries, Inc. v. U.S. Diamond Imports, 549 F.Supp. 415, 416-17 (S.D.N.Y.1982). Plaintiffs have failed to produce any evidence that the t-shirts have harmed plaintiffs' licensing program or the good will associated with plaintiffs' marks. Moreover, it appears that any losses suffered by plaintiffs as a result of the sale of the t-shirts, if proven, would be compensable in money damages after a full adjudication of plaintiffs' claims. Accord, Casey, supra, 622 F.Supp. at 206.[17]
Plaintiffs have also failed to establish a balance of hardships tipping decidedly in their favor. If anything, the hardships test favors defendants, since an injunction will prevent defendants from selling their inventory, whereas plaintiffs have not offered any evidence, as noted above, to indicate that plaintiffs will suffer any similar hardships if the injunction is denied.

CONCLUSION
For all the foregoing reasons, plaintiffs' motion for a preliminary injunction is denied. All parties shall appear before the Court for a Pre-Trial Conference on June 20, 1986 at 10:00 A.M.
It is SO ORDERED.
NOTES
[1]  Plaintiffs also seek a permanent injunction against defendants and damages for all profits earned by defendants from their sale of "Miami Mice" t-shirts. See Complaint at pp. 5-6. The sole issue addressed in this Opinion and Order is whether the preliminary injunction should be granted.
[2]  At the evidentiary hearing, neither party introduced any evidence as to what these various products looked like.
[3]  There is no dispute that plaintiffs' copyright and their application for trademark registration pre-date defendants' copyright and New York State trademark registration. See Pl. Ex. 25 & 26; Def. Ex. B & C.
[4]  RA Productions, the other defendant in this action, appears to simply be a business name for Bob Edelson. See Tr. at 31.
[5]  Plaintiffs contend that the elements allegedly misappropriated from "Miami Vice" constitute the mise-en-scene of the television series. See Plaintiffs' Post-Hearing Brief at 4. According to plaintiffs, the mise-en-scene is an essential element of the style, as opposed to the narrative portion, of a motion picture. According to plaintiffs, the general aspects of the mise-en-scene are: (1) setting, (2) costume, (3) lighting, and (4) figure expression and movement. See id. at 3.
[6]  17 U.S.C. § 301 provides, in relevant part:

(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.
(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to
(1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or
(2) any cause of action arising from undertakings commenced before January 1, 1978; or
(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106.
[7]  Plaintiffs argue that since the defendants allegedly misappropriated the title to the "Miami Vice" series, and a title is not copyrightable, see generally, Nimmer, supra, § 2.16, at 2-186, the subject matter of the work in which the state law rights are asserted is not within the subject matter of federal copyright. See Plaintiffs' Supplemental Memorandum of Law, at 2. The Court is not persuaded by this argument. This argument is completely at odds with plaintiffs' assertions throughout these proceedings that the defendants have misappropriated the entire essence of the "Miami Vice" television series, a copyrighted work. See, e.g., Tr. at 53; Plaintiffs' Post-Hearing Brief, at 3-4. Moreover, the mere fact that portions of the "Miami Vice" television series may consist of uncopyrightable material does not take the work as a whole outside of the subject matter protected by the Copyright Act and therefore does not avoid preemption. See Harper & Row, supra, 723 F.2d at 200.

The Court also finds no merit in plaintiffs' argument that preemption does not apply because defendants are unfairly competing with plaintiffs' licensing program, which cannot be copyrighted. See Plaintiffs' Supplemental Memorandum of Law, at 4. The gravamen of plaintiffs' state law claim is the misappropriation of plaintiffs' copyrighted television series. At best, any harm done to plaintiffs' licensing program represents additional damages flowing from the misappropriation claim. The strictures of § 301 cannot be circumvented merely by characterizing these potential additional damages as a separate unpreempted claim.
[8]  Roy Export Co. v. Columbia Broadcasting System, 503 F.Supp. 1137 (S.D.N.Y.1980) aff'd 672 F.2d 1095 (2d Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982) cited by plaintiffs, is not applicable to the present case. In that case, the district court held that federal copyright law did not preempt plaintiffs claims under New York law for unfair competition. While stating that "the question is not easy," the Roy Export court held that there was no preemption because New York's law required a finding of commercial immorality or unfairness based on additional evidence of bad faith not required under the copyright laws. Id. at 1151-52. In the alternative, however, the district court also found that the plaintiffs' unfair competition claim was not preempted because the claim was based substantially on the taking of a work not within the subject matter of the copyright laws. Id. at 1152. The Second Circuit affirmed but only on the basis of this second ground, specifically refusing to consider the first ground. See 672 F.2d at 1106 & n. 19. Moreover, the district court's decision in Roy Export is not applicable here because it was decided under the law applicable prior to the effective date of § 301. Thus, the district court in Roy Export did not consider whether these were "rights equivalent to copyright" but rather whether the state law was "an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," which was the applicable law at that time. See 503 F.Supp. at 1151 (citations omitted). Finding that the state law complemented rather than conflicted with federal law, the district court found no preemption. Id.
[9]  It is not disputed that section 43(a)'s protections "extend to the specific ingredients of a successful T.V. series," and that therefore section 43(a) applies to the "broad spectrum of marks, symbols, design elements and characters which the public directly associates" with the "Miami Vice" series. See Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 78 (2d Cir.1981); see also, DC Comics, Inc. v. Filmation Associates, 486 F.Supp. 1273, 1276-77 (S.D.N.Y.1980). Moreover, even though plaintiffs have only applied for trademark registration for the logo "Miami Vice," plaintiffs' common law trademarks in the "Miami Vice" series remain protectable under the Lanham Act, see Dallas Cowboys, supra, 604 F.2d at 203 n. 3 (2d Cir.1979), so long as those marks have acquired a secondary meaning. See Mattel, Inc. v. Azrak-Hamway Int'l., Inc., 724 F.2d 357, 360-61 (2d Cir.1983) (per curiam); Dallas Cowboys, supra, 604 F.2d at 203 & n. 5.

Neither party has briefed the issue of whether plaintiffs' trademarks have acquired a secondary meaning. Given the Court's holding infra that plaintiffs have not established a probability of success that there will be a likelihood of consumer confusion, the Court need not reach the secondary meaning issue.
[10]  The Court notes that while the titles are somewhat similar, the "Miami Mice" logo on the t-shirt is very different from the "Miami Vice" logo. The "Miami Vice" logo is written in stylized block letters with the word "Miami" above the word "Vice." The t-shirt logo, however, has the words "Miami Mice" written side-by-side in non-stylized block letters. Moreover, the words "Miami Mice" are printed over a diamond-shaped design which does not appear in connection with the "Miami Vice" logo. Given these differences, the Court does not find the logos to be confusingly similar. Accord, Universal City Studios v. Casey & Casey, 622 F.Supp. 201, 205 (D.C.Fla.1985).
[11]  In Nintendo the alleged holder of the trademark for "King Kong" sued the manufacturer of the video game "Donkey Kong" under section 43(a) of the Lanham Act. The Second Circuit granted summary judgment for the defendants in part because the "farcical, childlike and nonsexual" nature of the Donkey Kong character and game was so different from the King Kong story of the "ferocious gorilla in question of a beautiful woman" that there could be no likelihood of confusion as a matter of law. See Nintendo, supra, 746 F.2d at 116-17 (quoting district court's findings of fact in 578 F.Supp. 911, 928 (S.D.N.Y.1983)).
[12]  One of defendants' t-shirts, entitled "Mice Land" on defendants' order form, does depict the themes of crimes of violence. That t-shirt depicts a shark pointing a machine gun at a bikini-clad mouse who is standing on a pier, while the two Miami Mice have their guns drawn. This t-shirt, however, like the defendants' other t-shirts, at best parodies the television series and the Court is not convinced that consumers will be confused that plaintiffs' manufactured or authorized this t-shirt. Cf., Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. 785, 790 (E.D.N.Y.1983). Moreover, the Court notes that plaintiff has never requested that the Court enjoin only this "Mice Land" t-shirt.
[13]  The parties have supplied the Court with a sample t-shirt from the Casey action. That t-shirt has the words "Miami Mice" written in stylized block letters across the top of the shirt. The t-shirt depicts two mice, one white and one black, who are dressed in pastel outfits similar to the clothing worn by the "Miami Vice" characters. Moreover, the Casey t-shirts depict the mice leaning against a pastel-colored sports car.
[14]  Plaintiffs rely on several letters by the defendants to establish bad faith and intentional copying. The first letter was the August 8, 1985 letter, in which Edelson invited Universal to participate in the creation of an animated television show based on "Miami Mice." In that letter, Edelson merely acknowledged that "Miami Mice is an animated parody of Miami Vice." A mere intent to parody, however, should not give rise to a presumption of likelihood of consumer confusion. Indeed, as discussed above, a successful parody should serve to dispel consumer confusion rather than create it. See Nintendo, supra, 746 F.2d at 116.

The second letter plaintiffs rely on was a letter from Edelson to the Court dated September 30, 1985. In that letter, which was Edelson's "response to the complaint," Edelson reiterated that "Miami Mice is intended to be an animated, comical parody of TV cop/crime shows, not like other real life imitations of Miami Vice." Edelson also noted in the letter that he believed it was proper in our "free competitive consumer marketplace" to "emulat[e]" popular products until the market is saturated. The Court notes that section 43(a) of the Lanham Act is not designed to prevent people from taking advantage of popular trends in the marketplace. The harm that the Lanham Act seeks to protect against is the "misrepresentation of a common source." See Warner Bros., supra, 720 F.2d at 247. This letter does not indicate an intent to misrepresent or confuse consumers.
The final letter plaintiffs rely on was from Finn. This letter, dated August 27, 1985, was a response by Finn to plaintiffs' charges of unfair competition. See Defendants' Memorandum of Law in Opposition at Ex. D. Although Finn stated that, "[w]e are appreciative ... of the popularity of your product ...," Finn also denied any wrongdoing, claiming that "we do not believe there is any likelihood of confusion or intent to deceive by our use of rodents as obvious cartoon characters." See id.
The Court also notes that at the hearing on plaintiffs' motion for a preliminary injunction, Finn acknowledged that the Miami Vice series influenced the development of the t-shirts but denied that it was his intent to copy the series. Tr. at 69-71.
[15]  Plaintiffs rely on the district court opinion in Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366 (S.D.N.Y.1979), aff'd, 604 F.2d 200 (2d Cir.1979), to establish a presumption of confusion. In this case reliance on Dallas Cowboys is misplaced. In Dallas Cowboys, the district court preliminarily enjoined defendants from showing a sexually explicit film entitled "Debbie Does Dallas." The film, which had "no other purpose than to display sex acts in minute detail," see id. at 370, focused on a high-school cheerleader, Debbie, who becomes a "Texas Cowgirl." In the film and in its advertisements, Debbie appeared in a cheerleading uniform which was almost identical to the plaintiff's protected trademark in the familiar Dallas Cowboys Cheerleaders' uniform. See id., at 371.

In granting the preliminary injunction, the district court noted that the inference of a likelihood of confusion was readily drawn from the defendants' deliberate attempts "to cash in on the Dallas Cheerleaders' popularity and attracting power," see id. at 377, which indicated that the defendant expected consumer confusion. See id. at 375. The Dallas Cowboys case is distinguishable from the present case, however, because there was overwhelming evidence in that case that the defendants intended and expected consumer confusion. In addition to defendants' use of a cheerleading uniform which was almost identical to the Dallas Cowboys Cheerleaders' uniform, the film was promoted with advertisements containing deliberately misleading phrases such as, "Starring Ex Dallas Cowgirl Cheerleader Bambi Woods" and "You'll Do More Than Cheer For this X Dallas Cheerleader." See id. at 371. The star of the film was never a Dallas Cowboys Cheerleader. In the present case, as noted above, there is no evidence that defendants deliberately intended to deceive the public into believing that plaintiffs were in any way connected with the Miami Mice t-shirts.
[16]  More than one month after the hearing in this case, plaintiffs raised for the first time a claim of copyright infringement. See Plaintiffs' Supplemental Brief, at 7. Although the Court subsequently granted plaintiffs leave to brief this issue, plaintiffs' complaint fails to allege copyright infringement. Moreover, at the first Pre-Trial Conference, plaintiffs specifically disclaimed a copyright infringement theory stating:

Basically what we have here is an unfair competition caseand I emphasize thatthis is an unfair competition case. It is not a trademark case, it is not a copyright case. See Transcript of 9/20/85 Pre-Trial Conference at 2.
Assuming plaintiffs' complaint could be deemed amended to include this belated claim for copyright infringement, cf. Studebaker Corp. v. Gittlin, 360 F.2d 692, 694 (2d Cir.1966), plaintiffs have still failed to establish a likelihood of success on the merits. First, to succeed on a claim for copyright infringement, plaintiffs must establish a substantial similarity between the two works. See Warner Bros., supra, 720 F.2d at 239. Due to the differences between the television series and the t-shirts as noted above, it is unlikely that plaintiffs will be able to establish this element at trial. Accord, Casey, supra, 622 F.Supp. at 206. Moreover, given the obvious satiric effect of their rodent-like caricatures, defendants' t-shirts may fairly be characterized as a non-infringing parody under the "fair use" doctrine. Cf. Warner Bros., supra, 720 F.2d at 242.
In their final brief, plaintiffs also argued that defendants should be enjoined under New York's anti-dilution statute. N.Y.Gen.Bus.Law § 368-d (McKinney 1984). This claim was also not raised in the complaint. Even if this claim had been included in the complaint, however, the Court finds this claim to be without merit at this time because there has been no showing that plaintiffs' marks will be tarnished or blurred by the t-shirts. See Warner Bros., supra, 720 F.2d at 248; Sally Gee, Inc. v. Hogan, 699 F.2d 621, 624-26 (2d Cir.1983).
[17]  The Court rejects plaintiffs' argument that they will suffer irreparable injury because defendants are planning to develop a "Miami Mice" television series. There is no evidence that defendants have the imminent capacity to carry out such plans. Each of defendants' attempts to interest Paramount Pictures and plaintiffs, respectively, to develop such a series was flatly rejected. Moreover, assuming arguendo that such a series is developed at some later time, since the idea of a "Miami Mice" television series has not progressed beyond these two unsuccessful attempts by defendants, there is no way to determine if the series will be similar to the "Miami Vice" series. The mere possibility that defendants may at some future time develop a confusingly similar television series is too speculative and attenuated a basis for the issuance of a preliminary injunction at this time.