Ameron, Inc., 7 F.3d 1327, 1329 (7th Cir.1993); Indianapolis Colts, Inc. Metropolitan Baltimore Football Club, LP, 31 U.S.P.Q.2d 1801, 1806 (S.D.Ind.1994), aff'd, 34 F.3d 410 (7th Cir. This list of factors is not intended to be a mechanical checklist.
No one factor is decisive, and the court must weigh all the facts and circumstances of the particular marks, products, and parties. There are a myriad of variables to be considered, but the most important are the similarity of the marks, the intent of the claimed infringer, and evidence of actual confusion. Anheuser-Busch, Inc., 873 F.2d 985, 999 (7th Cir.1989). In general, the Seventh Circuit has often reaffirmed that the weight accorded to each of the seven factors will vary from case to case. There is a strong similarity between the marks PROZAC ® and HERBROZAC, in terms of sight, sound, and meaning. HERBROZAC includes five of the six letters of PROZAC ®. As for the sixth, the "B" sound in HERBROZAC is very similar to the "P" sound at the beginning of PROZAC ®. The net effect is a message that effectively states "herbal Prozac." In their surreply brief, defendants argue that HERBROZAC merely "calls to mind" the PROZAC ® mark. The Lanham Act does not prohibit the use of a mark that merely calls to mind another mark.
See 3 McCarthy on Trademarks and Unfair Competition § 23:9 (4th ed.1999). If Lilly's case were based only on the similarity of the two marks, defendants' point would carry more weight. In considering the likelihood of confusion, however, the court must consider several other factors which show that HERBROZAC does much more than merely "call to mind" the PROZAC ® mark. There are important differences and similarities between these two products. It is a dietary supplement available directly to consumers who choose to take it. The maker of HERBROZAC may not lawfully claim that the product is intended to diagnose, treat, or cure a disease. By contrast, PROZAC ® is a prescription drug that has been proven safe and effective in treating clinical depression and other conditions. There are also physical differences between the products that should not be overlooked. HERBROZAC comes in large capsules with a distinctly herbal odor. Despite these differences, the difference between a drug and a dietary supplement is primarily an artificial construct of the law, not necessarily a real difference between products. The artificial distinction between drug and dietary supplement is one that Natural Answers seeks to preserve for legal purposes but to obscure for marketing purposes. Natural Answers markets HERBROZAC as an alternative to PROZAC ® and other antidepressant drugs. And the promotion of "mood elevation" (which HERBROZAC claims) is neatly and intentionally parallel to the use of PROZAC ® to treat depression. Competition between products is a matter of degree. COCA-COLA ® competes most directly with PEPSI-COLA ® and other cola drinks, but it also competes to some degree with other beverages, such as ginger ale, root beer, fruit juices, milk, and bottled water. Similarly, PROZAC ® competes most directly with other prescription antidepressant drugs like Zoloft ® and Elavil ®. Where the defendant has *842 chosen to market its product explicitly as an alternative to the plaintiff's product, however, as in this case, it is reasonable to treat the products as in direct competition or at the very least as in close "competitive proximity," despite some important differences. Pegasus Petroleum Corp., 818 F.2d 254, 257-58 (2d Cir.1987) (Mobil's famous flying horse mark with word "pegasus" was infringed by oil trading company's use of "pegasus;" although Mobil did not use flying horse mark in oil trading business, the competitive proximity of the businesses and the strength of Mobil's mark tended to show likelihood of confusion). The Seventh Circuit has explained, in applying this factor, that the parties' lines of business need not be the same, so long as their "`products [or services] are the kind the public attributes to a single source.'" Forum Corporation of North America v. Forum, Ltd., 903 F.2d 434, 442 (7th Cir.1990), quoting International Kennel Club, 846 F.2d at 1089, and citing Helene Curtis Indus. Church & Dwight Co., 560 F.2d 1325, 1331 (7th Cir.1977). "The parties need not be in direct competition and their goods and services need not be identical." Forum, 903 F.2d at 442, citing Halliburton Co. 318, 320 (S.D.Tex.1980) (concurrent use between large diversified oil field service company and distributor of steel supplies to petroleum companies). The distinction between drugs and dietary supplements is recognized in the law, but it is being obscured in the market-place. As noted above, large pharmaceutical companies are now marketing their own brands of dietary supplements.
John's Wort, which is associated with some degree of "mood elevation." In other words, a dietary supplement based on herbs lies, for purposes of trademark law, in the natural line of expansion for a manufacturer of pharmaceutical drugs, especially where a drug and dietary supplement are intended and used to affect the same body functions and/or structures. That is, Natural Answers is trying to position its HERBROZAC in the closest "competitive proximity" to PROZAC ® that the food and drug laws will possibly allow. In addition, because of this competitive proximity, a consumer could now reasonably perceive some affiliation or association between the sources of PROZAC ® and HERBROZAC. With respect to this factor, again, there are both similarities and differences. Lilly distributes PROZAC ® throughout the United States and in many countries around the world. PROZAC ® is available both from brick-and-mortar pharmacies and from Internet pharmacies (as long as the customer can show he or she has a proper prescription). Natural Answers advertises HERBROZAC on the Internet and appears to be willing to fill orders at least from anywhere in the United States.
The important difference is that PROZAC ® is available only by prescription, while anyone may order HERBROZAC over the Internet. Lilly does not contend that consumers are likely to believe that HERBROZAC capsules are really PROZAC ®.