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PROZAC ® has been featured twice on the cover of Newsweek and once on the cover of The Saturday Evening Post, among other national magazines. Major broadcasting networks have also featured PROZAC ® in national stories. *837 For example, in 1991 CBS broadcast a story titled "What About Prozac?" on 60 Minutes.

In 1995, ABC broadcast a story called "Beyond Prozac" on Good Morning America. The Oprah Winfrey Show carried a story called "Prozac" in 1994. A health care industry advertising publication called MedAdNews named PROZAC its "brand of the year" for 1993. As further evidence of the fame of the mark, in the flurry of retrospective looks at the 20th Century, Fortune Magazine identified PROZAC ® as one of the top six products of the century in the category of health and grooming. [1] Lilly has submitted an article from the Baltimore Sun of September 21, 1993, that sums up the fame PROZAC ® achieved within just a few years of its initial launch as a brand. After referring to the use of PROZAC ® in punch lines in a Woody Allen film and a New Yorker poem, the author wrote: Prozac entered the popular lexicon almost immediately after its introduction six years ago. It's been on the cover of Newsweek and shared the stage with Phil and Geraldo; it continues to turn up in the monologues of comedians and the cultural references of the ironic. It's a designer label, a buzzword, a brand name familiar to not only the 4.5 million Americans who have taken it, but also those who wonder if they, too, might find a cure for whatever ails them in the little green-and-off-white capsule. As further evidence of PROZAC ®'s fame, searches of computerized databases turned up extraordinary numbers of responses.

A search of the Internet for "Prozac" using the Altavista search engine on November 29, 1999, found 63,150 web pages. A November 29, 1999, search of the Westlaw database ALL-NEWS for the word Prozac and a date after 1997 produced more than 10,000 stories. The Westlaw database DOW JONES MAJOR NEWSPAPERS covers only 48 major newspapers. A November 29, 1999, search of that database for "Prozac" over the last ten years turned up more than 12,000 references, or an average of more than 250 stories for each newspaper included in the database. Defendant Natural Answers' HERBROZAC is part of a line of products that Natural Answers calls HERBSCRIPTIONS ®. These products are manufactured from a variety of herbs and other natural substances. Natural Answers markets these products over the Internet from a site marked . Natural Answers has not yet arranged for distribution through "brick-and-mortar" retail stores, but it is actively seeking to do so. The HERBSCRIPTIONS ® line of products includes HERBROZAC, as well as HERBALIUM, VITA-AGRA, CLIMAGRA, HERBOCET ®, ZONK OUT, HerbenolPM, HERBASPRIN ®, and HERBADRYL ®. Natural Answers tries to walk a fine line in its business. On one hand, Natural Answers attempts to draw a sharp distinction between its herbal formula dietary supplements and the drugs manufactured by pharmaceutical companies like Lilly. Natural Answer takes care to claim that its products are not "intended to diagnose, treat or cure any disease." See, e.g., Feinstein Aff. This distinction is important for both marketing and legal reasons. Natural Answers does not want to subject its products to regulation by the Food and Drug Administration. The FDA *838 treats Natural Answers' dietary supplements as "foods" that are not subject to the FDA's drug approval process. This regulatory treatment of the products as "foods," however, requires Natural Answers to make clear in its labeling that its products are not FDA-approved and are "not intended to diagnose, treat, cure, or prevent any disease." 21 U.S.C. Nevertheless, Natural Answers wants to market its products as natural alternatives to manufactured pharmaceuticals. Natural Answers markets its products as "dietary supplements" that are "intended to promote the body's natural functions." Feinstein Aff. Natural Answers markets all the HERBSCRIPTIONS ® products as alternatives to drugs. The company's web site makes a direct comparison between "herbs" and "drugs" that portrays herbal formulas in an entirely positive light and as alternatives to drugs. One way in which Natural Answers tries to suggest the benefits of its products is by giving them names that suggest an association with well-known drug brands or families of drugs. As explained below in the discussion of the similarity of the marks in question, the association between PROZAC ® and HERBROZAC is strong and intentional. Natural Answers chose a name similar to PROZAC ® rather than a name similar to other antidepressant drugs because PROZAC ® is the most famous and best-selling antidepressant drug. Natural Answers has advertised HERBROZAC as "a very potent and synergistic formula, designed to promote Mood Elevation!" Pl.Ex. Natural Answers also has advertised HERBROZAC as "a powerful, and effective all-natural and herbal formula alternative to prescription drug Prozac." Pl.Ex.

2-2 (source code for Natural Answers home page as of Nov. [2] Natural Answers' Feinstein testified at the hearing that the other product names in the HERBSCRIPTIONS ® line attempt to suggest similar associations. Natural Answers promotes HERBALIUM as a formula to promote "deep relaxation," and the name is intended to suggest an association with the brand-name drug VALIUM.

Natural Answers promotes VITA-AGRA as enhancing men's sexual performance, and the name is intended to suggest an association with the Pfizer brand-name drug VIAGRA ®. [3] Natural Answers promotes HERBOCET ® as a pain reliever, and its name is intended to suggest an association with a family of pain relief drugs using the suffix "cet," such as Lorcet, Darvocet, and Percocet. Natural Answers promotes HerbenolPM as suitable for headaches and a good night's sleep, and the name is intended to suggest an association with TylenolPM ®. Natural Answers promotes HERBASPRIN ® for pain relief, and the name is intended to suggest an association with aspirin.

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