vapor shop norman ok

In contrast here, the massive publicity surrounding the PROZAC ® mark and product during the last eleven years has been more than sufficient to make it a "famous" mark despite its relatively short life. (D) The Geographical Extent of the Trading Area in which the PROZAC ® Mark is Used. PROZAC ® has been marketed and sold throughout the United States and around the world. Since 1988, in the United States alone, PROZAC ® has been prescribed over 240 million times to more than 17 million Americans. PROZAC ®'s sales have totaled more than $12 billion since 1988.

The PROZAC ® mark is used in an extremely broad trading area. (E) The Channels of Trade for the PROZAC ® Product. PROZAC ® is a prescription drug, and as such, its channels of trade include doctors, pharmacists, and patients who have received prescriptions for PROZAC ®. (F) The Degree of Recognition of the PROZAC ® mark in the Trading Areas and Channels of Trade used by both Lilly and Natural Answers. This factor considers the degree of recognition that the PROZAC ® mark has achieved in markets that are used by both Lilly for PROZAC ® and Natural Answers for HERBROZAC. Essentially, the question is whether potential customers for HERBROZAC recognize the PROZAC ® mark. If they did not, then Natural Answers might be able to argue that the *850 PROZAC ® mark had achieved fame only in a particular "niche" market and not a more general level of fame. See Syndicate Sales, 192 F.3d at 640 (collecting cases on fame in niche markets); King of the Mountain Sports, Inc. 568, 578 (D.Col.1997), aff'd, 185 F.3d 1084 (10th Cir.1999); Golden Bear International, Inc.

A good example of the application of this factor is Mead Data Central, Inc. Toyota Motor Sales, U.S.A., Inc., 875 F.2d 1026, 1031 (2d Cir.1989). In Mead Data, the Second Circuit applied New York's antidilution statute and concluded that LEXIS, the mark used by the plaintiff for its computerized legal research service, is famous and distinctive only in its market attorneys and accountants. The "general public associates nothing with LEXIS." Id. Therefore, it could not enjoin the defendant's use of LEXUS as the mark for luxury automobiles and the division of Toyota that manufactures them: the market in which LEXIS is well-known is considerably smaller than the market in which LEXUS operates. PROZAC ®'s channels of trade are among doctors, pharmacists, and patients with a PROZAC ® prescription. Because of these limited channels of trade, Natural Answers argues, this factor weighs against a finding that the PROZAC ® mark has achieved the "general" level of fame that is required under the Dilution Act. But see Syndicate Sales, 192 F.3d at 640 (fame of plaintiff's mark in "niche" market may support federal dilution claim where defendant seeks to use similar mark in same niche). As set forth above, the PROZAC ® mark is widely publicized and advertised around the United States and the world. This publicity is not limited, as some drugs are, to medical journals and catalogs. The PROZAC ® mark has achieved recognition among an extraordinarily wide public. PROZAC ®'s wide public recognition obviously includes a large percentage of Natural Answer's actual and potential customers. In fact, this overlap in the recognition of the PROZAC ® mark between Lilly's and Natural Answer's markets is precisely why Natural Answers chose the name HERBROZAC. Natural Answers wants people to consider using its product as a "natural" alternative to PROZAC ®. The overlap of markets is further evidenced by the fact that Natural Answers has used the word "Prozac" as a metatag for its web page. Natural Answers wanted people who were using the web to gather information on PROZAC ® to come across its web page so that Natural Answers could encourage them to consider an all-natural alternative to PROZAC ®. Natural Answers' entire marketing strategy for HERBROZAC has been based on the fact that its potential customers recognize the PROZAC ® mark. This factor clearly weighs in favor of PROZAC ® being a famous mark. (G) The Nature and Extent of the Use of the Same or Similar Marks by Third Parties. The court addressed this factor above in its discussion of whether the PROZAC ® mark is distinctive. Natural Answers points out that a number of product names use the prefix "pro" and the suffix "zac." Again, however, the entire mark should be considered in determining the fame of a mark. Natural Answers has not put forth any evidence that other products have used, or are using the PROZAC ® mark.

Therefore, this factor also weighs in favor of finding the PROZAC ® mark to be famous. As for the final factor, the PROZAC ® mark has been registered by Lilly.

The evidence is clear in this case that PROZAC ® is a widely publicized and recognized mark around the world. *851 § 1125(c) (1), the court finds that Lilly is likely to be able to show that PROZAC ® is a famous mark for purposes of the Dilution Act. The Lanham Act defines "dilution" as "the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception." 15 U.S.C.


Get in touch