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 ®. Such confusion is not likely because one cannot even purchase PROZAC ® without a prescription from a licensed physician, who is not at all likely to confuse one product for another. Lilly contends, however, that the similarity of the trademarks is likely to confuse some consumers as to whether there is some affiliation or association between the sources of the two products. The Lanham Act applies to use of a product name that "is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person . § 1125(a) (1); see also 4 McCarthy, § 24:16 *843 at 24-33 ("If the consumer is reasonably mistaken as to the source or sponsorship of an alleged infringer's goods, she suffers a real and independent injury . Tour 18 I Ltd., 155 F.3d 526, 543 (5th Cir.1998) (golf course designed to imitate famous golf holes found likely to cause confusion of affiliation between the original golf courses and imitation course).
On the issue of consumer care with respect to affiliation or association, there is no reason to expect consumers of HERBROZAC to exercise great care to determine whether or not the seller of HERBROZAC is affiliated, connected, or associated with the seller of PROZAC ®.
"The term `strength' as applied to trademarks refers to the distinctiveness of the mark, or more precisely, its tendency to identify the goods sold under the mark as emanating from a particular . Quaker Oats Co., 978 F.2d 947, 959 (7th Cir.1992), quoting McGregor-Doniger Inc. Drizzle Inc., 599 F.2d 1126, 1131 (2d Cir.1979), superseded by rule on other grounds, as recognized in Bristol-Myers Squibb Co. McNeil-P.P.C., Inc., 973 F.2d 1033, 1044 (2d Cir.1992). First, it is a fanciful word that carries no meaning apart from its use to identify a product.