233 F.3d 456 (7th Cir. 2000)
ELI LILLY & COMPANY, an Indiana corporation, Plaintiff-Appellee,v.NATURAL ANSWERS, INCORPORATED, a Florida  corporation, and BRIAN A. FEINSTEIN, Defendants-Appellants.
No. 00-1375
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 11, 2000Decided November 21, 2000

Appeal from the United States District Court  for the Southern District of Indiana, Indianapolis Division.  No. IP 99-1600-C H/G--David F. Hamilton, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before BAUER, EVANS, and WILLIAMS, Circuit Judges.
EVANS, Circuit Judge.


1
When Internet start-up  Natural Answers, Inc. began marketing a line of  herbal products called Herbscriptions, we assume  it hoped to avoid getting embroiled in a nasty  court fight, especially one with a global  pharmaceutical giant like the Eli Lilly company.  But no such luck, for here it is (along with its  founder Brian Feinstein), asking us to reverse a  district court order, granted on Lilly's motion  for a preliminary injunction, which stopped  Natural Answers from marketing its herbal "mood  elevator" HERBROZAC. Although Natural Answers  does its best to paint this case as David versus  Goliath, and hopes for a result similar to that  achieved by David, it doesn't have much of a  slingshot to carry into the battle.


2
The basis of Lilly's claim is that the name  HERBROZAC comes unfairly close to Lilly's  protected mark for PROZAC , a prescription drug  used to treat clinical depression. PROZAC  has  received considerable media attention since its  rollout in 1988, appearing twice (March 26, 1990,  and February 7, 1994) on the cover of Newsweek.  In 1999 Fortune magazine named it one of the top  six "health and grooming" products of the 20th  Century.1 PROZAC  has been prescribed over 240  million times for 17 million Americans,  generating sales of more than $12 billion.


3
Natural Answers develops, markets, and sells a  line of herbal dietary supplements that it calls  Herbscriptions. Herbscriptions are positioned as  "drug alternatives" and include supplements  called HerbenolPM, HERBALIUM, HERBASPIRIN, and  HERBADRYL. Natural Answers' Feinstein testified  that each name was chosen to call to mind the  function of a famous drug from which its name is  derived.2 Although Natural Answers is careful  to characterize its products as alternatives to  drugs, as opposed to substitutes for drugs,  Feinstein testified that he hopes to persuade  consumers not to have "a default reaction to  immediately go to their physician and have a  prescription for something they may not need."


4
Natural Answers markets its Herbscriptions line  exclusively through its Internet Web site but  plans to expand its channels of distribution to  include retail outlets like health food and  convenience stores. Natural Answers' Web site  contains a column labeled "Think Herbs - not  drugs!", under which it reads "Don't get your  prescriptions filled with drugs . . . Get your  Herbscriptions filled with Nature!" The Web site  also features a table labeled "Herbs v. Drugs"  which contrasts Natural Answers' products with a  generic "Drug Alternative." In addition, until  December 1999, Natural Answers' Web site  contained a source code which included the term  "Prozac" as a metatag,3 and described HERBROZAC  as "a powerful, and effective all-natural and  herbal formula alternative to the prescription  drug Prozac." Internet search engines read source  codes, which are not immediately visible to an  Internet user, in response to search queries.  Natural Answers' use of "Prozac" as a metatag was  an attempt to guide Internet users searching for  information on PROZAC  to Natural Answers' Web  site. This effort apparently was unsuccessful,  however, because searchers entering the keyword  "Prozac" were swamped with Web sites containing  a greater number of references to PROZAC .  Natural Answers removed the term "Prozac" from  its source codes in response to this lawsuit.


5
HERBROZAC is positioned as a "mood elevator."  In order to maintain its status as a "food," and  thus remain beyond the scope of the Food and Drug  Administration's drug approval process,  HERBROZAC's label warns that "[t]his product is  not intended to diagnose, treat or cure any  disease." No prescription is necessary to  purchase HERBROZAC. The tablets themselves are  larger than average, dark brown with black specs,  and have a distinctly herbal odor. In contrast,  PROZAC  is available only with a doctor's  prescription, which can be filled only by a  licensed pharmacist. PROZAC  tablets are green  and off-white, and smaller than average.


6
Before Natural Answers could get HERBROZAC off  the ground, Lilly sued to enjoin use of that  name, claiming infringement under the Lanham  Trademark Act, 15 U.S.C. sec. 1125(a), dilution  under the Federal Trademark Dilution Act, 15  U.S.C. sec.1125(c), and violation of Indiana's  unfair competition law. Addressing the federal  claims only, the district court held that Lilly  would likely succeed in proving at trial that the  HERBROZAC name is likely to confuse consumers  under the Lanham Act. In addition, after holding  that Lilly was not required to demonstrate actual  dilution in order to obtain relief under the  Trademark Dilution Act, the court found that use  of the HERBROZAC name created a likelihood of  dilution of the PROZAC  mark. Accordingly, the  district court enjoined Natural Answers from  further use of the HERBROZAC name and ordered  that the references to PROZAC  be removed from  the source files of Natural Answers' Web site. At  that time, Natural Answers had sold less than  $2,000 worth of the supplement. This appeal  followed.


7
The standard for deciding a motion for a  preliminary injunction is well-established and  need not be restated at length. Suffice it to say  that the moving party is required to demonstrate  a likelihood of success on the merits, that it  has no adequate remedy at law, and that it will  suffer irreparable harm if preliminary relief is  denied. Abbott Lab. v. Mead Johnson & Co., 971  F.2d 6, 11 (7th Cir. 1992). If the moving party  can pass this threshold, the court will then  consider any irreparable harm a preliminary  injunction would cause to the nonmoving party, as  well as the consequences to nonparties of  granting or denying the requested relief. Id. at  11-12. Then, sitting as would a court of equity,  the court weighs all of these factors on a  sliding scale; the more likely that the plaintiff  will succeed on the merits, the less the balance  of harms need favor him. Diginet, Inc. v. Western  Union ATS, Inc., 958 F.2d 1388, 1393 (7th Cir.  1992).


8
The district court (Judge David F. Hamilton  presiding) painstakingly followed the prescribed  formula, although it devoted the bulk of its  analysis to Lilly's likelihood of success on the  merits. Because the other factors are easily  resolved, we'll follow the district court's lead.  We review the district court's decision to grant  a preliminary injunction under the abuse of  discretion standard. Abbott Lab., 971 F.2d at 12.  In analyzing the relevant factors, a district  court abuses its discretion only when it makes a  clear error of fact or an error of law. Id. at  13.


9
We turn first to the Lanham Act, enacted in  1946. In the Act, Congress explicitly stated it  intended to protect registered marks from  interference by state legislation, prevent unfair  competition, and protect against fraud "by the  use of reproductions, copies, counterfeits, or  colorable imitations of registered marks . . . ."  15 U.S.C. sec. 1127. Against this background  suggesting a broad legislative purpose, courts  have come to a consensus that a Lanham Act  plaintiff need only establish that its mark is  protectable and that the junior mark is likely to  cause confusion among consumers. Munters Corp. v.  Matsui Am., Inc., 909 F.2d 250, 252 (7th Cir.  1990); International Kennel Club of Chicago, Inc.  v. Mighty Star, Inc., 846 F.2d 1079, 1084 (7th  Cir. 1988). Because Lilly registered the PROZAC mark in 1985 and has used it continuously for  more than 5 years, it is incontestable. See 15  U.S.C. sec. 1065. As a result, Natural Answers  cannot--and does not--argue that the PROZAC  mark  is outside the protection of the Lanham Act. See  Park 'N Fly, Inc. v. Dollar Park and Fly, Inc.,  469 U.S. 189, 205 (1985).


10
Natural Answers does contend, however, that  consumers are unlikely to be confused by the  HERBROZAC name. In assessing the likelihood of  consumer confusion, we generally consider seven  factors: (1) the similarity between the marks in  appearance and suggestion, (2) the similarity of  the products, (3) the area and manner of  concurrent use of the products, (4) the degree of  care likely to be exercised by consumers, (5) the  strength of the complainant's mark, (6) any  evidence of actual confusion, and (7) the  defendant's intent (or lack thereof) to palm off  its product as that of another. Smith Fiberglass  Prods., Inc. v. Ameron, Inc., 7 F.3d 1327, 1329  (7th Cir. 1993). As the district court  recognized, these factors are not a mechanical  checklist, and "[t]he proper weight given to each  . . . will vary from case to case." Dorr-Oliver,  Inc. v. Fluid-Quip, Inc., 94 F.3d 376, 381 (7th  Cir. 1996). At the same time, although no one  factor is decisive, the similarity of the marks,  the intent of the defendant, and evidence of  actual confusion are the most important  considerations. G. Heileman Brewing Co., Inc. v.  Anheuser-Busch, Inc., 873 F.2d 985, 999 (7th Cir.  1989).


11
After an exhaustive analysis of each of the  relevant factors, Judge Hamilton concluded that  use of the HERBROZAC name was likely to confuse  consumers. Specifically, he found that the  similarity between the two marks and products,  the strength of the PROZAC  mark, consumers'  degree of care in choosing between PROZAC  and  HERBROZAC, alleged evidence of actual confusion,  and Natural Answers' intent to palm off all  created a likelihood of confusion. The conclusion  regarding likelihood of confusion is a finding of  fact which will not be reversed unless it is  clearly erroneous. Smith Fiberglass Prods., 7  F.3d at 1329; AHP Subsidiary Holding Co. v.  Stuart Hale Co., 1 F.3d 611, 616 (7th Cir. 1993).  We'll now take a closer look at each of the  factors bearing on the likelihood of confusion.


12
The similarity between the names PROZAC  and  HERBROZAC is obvious: HERBROZAC contains five of  the six letters in PROZAC , and the "B" in  HERBROZAC sounds similar to the "P" in PROZAC .  Natural Answers argues that the two marks are  dissimilar because HERBROZAC may be pronounced  with an emphasis on the first syllable  (HERBrozac), thus rendering the "B" and "P"  sounds less similar than when the second syllable  of HERBROZAC is emphasized (herBROzac). Even  under Natural Answers' preferred pronunciation  (which seems contrary to the natural  pronunciation of a combination of the root words  "herb" and "Prozac"), however, the two words are  strikingly similar.


13
Natural Answers next argues that the HERBROZAC  name merely "calls to mind" PROZAC , while at the  same time distinguishing itself. The mere fact  that one mark brings another mark to mind is not  sufficient to establish a likelihood of confusion  as to the source of the product. Application of  Ferrero, 479 F.2d 1395, 1397 (C.C.P.A. 1973). In  addition, Natural Answers asserts that its  adaptation of the PROZAC  name is a parody and  implies that, as such, it is entitled to some  heightened form of protection from trademark  liability. In any case, the HERB prefix,  according to Natural Answers, so significantly  distinguishes HERBROZAC from PROZAC  that  consumer confusion is unlikely.


14
As the district court found, however, "HERBROZAC  does much more than merely 'call to mind' the  PROZAC  mark." Unlike the mark at issue in  Ferrero, PROZAC  is a fanciful word that has no  meaning independent of Lilly's mark. Such marks  are entitled to the highest protection. See  Seven-Up Co. v. Tropicana Prods., Inc., 356 F.2d  567, 568 (C.C.P.A. 1966) ("with coined words  which are meaningless so far as the English  language is concerned, slight variations in  spelling or arrangement of letters are often  insufficient to direct the buyer's attention to  the distinction between marks"). In addition, the  district court received evidence that other  pharmaceutical companies have expanded their  product lines to include dietary supplements  based on "St. John's Wort" (the principal herbal  component of HERBROZAC), increasing the  likelihood that consumers would mistakenly  believe that HERBROZAC is affiliated with or  sponsored by Lilly. Moreover, HERBROZAC is not a  parody of PROZAC . A parody is a humorous or  satirical imitation of a work of art that  "creates a new art work that makes ridiculous the  style and expression of the original." Rogers v.  Koons, 960 F.2d 301, 309-10 (2d Cir. 1992).  Natural Answers does not even attempt to point  out any humor or satire in its imitation of the  PROZAC  mark. More important, we previously  cautioned that even if a junior mark meets the  definition of a parody, it still runs afoul of  the trademark laws if it is likely to confuse  consumers. See Nike, Inc. v. "Just Did It"  Enterprises, 6 F.3d 1225, 1228 (7th Cir. 1993)  ("the parody has to be a takeoff, not a ripoff").  Given the strong similarity in the marks and the  potential overlap in Lilly's and Natural Answers'  product lines, the mere addition of the HERB  prefix does not go far enough to distinguish  Natural Answers' product from PROZAC .  Accordingly, the strong similarity of the marks  weighs heavily in favor of a finding of  likelihood of confusion.


15
Another factor is whether HERBROZAC and PROZAC are similar products. On a purely technical level  they are different HERBROZAC is a food and  PROZAC  is a drug. See 21 U.S.C. sec. 321(f)-  (g)(1) (distinguishing between dietary  supplements and drugs for purposes of Federal  Food, Drug and Cosmetic Act); Dietary Supplement  Health and Education Act of 1994, S. Rep. No.  103-410, pt. VIII, sec. 2(2)(A)-(B) (clarifying  that dietary supplements are not drugs and should  not be regulated as drugs). This is a critical  distinction, moreover, because HERBROZAC is not  subject to the rigorous testing and approval  process applied to drugs.


16
The fact that HERBROZAC and PROZAC  are not the  same product does not end our inquiry, however,  because we are concerned only with whether they  are similar. Although its legal papers take a  contrary position, Natural Answers would  certainly have consumers believe that HERBROZAC  and PROZAC  are similar products. Indeed, Natural  Answers describes HERBROZAC as a "mood elevator,"  the mirror image of anti-depressant, and markets  it as an alternative to PROZAC . Natural Answers'  dual-track conception of HERBROZAC--as a PROZAC alternative for marketing purposes, but a  dissimilar product for legal purposes--is  disingenuous. Moreover, contrary to Natural  Answers' suggestion, our inquiry in comparing the  two products is not whether they are  interchangeable, but whether "the parties'  products are the kind the public might very well  attribute to a single source (the plaintiff)."  International Kennel Club, 846 F.2d at 1089  (affirming preliminary injunction in favor of dog  show sponsor against manufacturer of toy dogs);  see also Forum Corp. of N. Am. v. Forum, Ltd.,  903 F.2d 434, 442 (7th Cir. 1990) (quoting  International Kennel Club). Because dietary  supplements and drugs serve somewhat similar  functions, and because dietary supplements are an  area of natural expansion for pharmaceutical  companies, HERBROZAC's similarity to PROZAC  is  indicative of a likelihood of confusion.


17
It is unlikely that HERBROZAC and PROZAC  would  ever be used concurrently. As Lilly points out,  there is some degree of danger that consumers  suffering from self-diagnosed depression will  view HERBROZAC as a PROZAC  substitute and never  seek medical advice. However, a consumer must  have a prescription from a doctor in order to  obtain PROZAC , and we have no doubt that doctors  would experience little difficulty in  distinguishing between the two products. Thus,  any consumer with access to PROZAC  would  necessarily have the advice of a doctor, who  presumably would explain the merits and demerits  of each product. Accordingly, it is unlikely that  HERBROZAC and PROZAC  would be used concurrently.  This factor, therefore, weighs in favor of  Natural Answers.


18
Although we will indulge in the assumption that  doctors exercise great care in selecting  medications for their patients, the record  contains scant evidence of the degree of care  likely to be exercised by ordinary consumers.  Natural Answers suggests that the legislative  history of the Dietary Supplement Health and  Education Act--which found that consumers  generally believe that dietary supplements should  not be regulated as drugs--is indicative of a  high standard of care among consumers. See  Dietary Supplement Health and Education Act of  1994, S. Rep. No. 103-410, pt. VIII, sec.  2(9)(B). In addition, Natural Answers asserts  that its Web site, the only medium through which  HERBROZAC is advertised, makes clear that the  product is not associated with Lilly.


19
We are not at all sure that Natural Answers'  customers exercise greater than average care.  Natural Answers would have us consider only the  care exercised by doctors, but the first-line  consumers of HERBROZAC are ordinary consumers,  who may or may not seek medical advice before  buying HERBROZAC. Indeed, Natural Answers'  strategy is to divert consumers away from doctors  by "hav[ing] them go natural first and not go  with drugs," so we must look at the degree of  care exercised by all consumers. See Forum Corp.  of N. Am., 903 F.2d at 442 ("the court properly  should . . . consider[ ] the group of potential  purchasers of both products"). Unfortunately for  Natural Answers, there is just no evidence that  consumers as a whole are extraordinarily careful  when it comes to dietary supplements. The  legislative history cited by Natural Answers  demonstrates that consumers are not generally  confused between dietary supplements and drugs,  and maybe even that they are unlikely to think  that HERBROZAC is actually PROZAC , but it  certainly does not address the potential for  confusion concerning Lilly's sponsorship of, or  affiliation with, HERBROZAC. This is the question  we must answer, see Pebble Beach Co. v. Tour 18  I Ltd., 155 F.3d 526, 543 (5th Cir. 1998), and  neither the cited legislative history nor the  fact that Natural Answers' Web site does not  visibly mention PROZAC  or Lilly helps our  analysis. We will therefore discount the degree  of consumer care factor.


20
"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 . . . source." Sands, Taylor & Wood  Co. v. Quaker Oats Co., 978 F.2d 947, 959 (7th  Cir. 1992) (quoting McGregor-Doniger, Inc. v.  Drizzle, Inc., 599 F.2d 1126, 1131 (2d Cir.  1979), superseded by rule on other grounds, as  stated in Bristol-Myers Squibb Co. v. McNeil-  P.P.C., Inc., 973 F.2d 1033, 1044 (2d Cir.  1992)). Natural Answers concedes, as it must,  that PROZAC  is a strong mark. This factor weighs  in favor of a finding of likelihood of confusion.


21
The record contains no evidence of actual  consumer confusion, but Lilly cannot be expected  to tender such evidence at this stage. When Lilly  filed this lawsuit, Natural Answers had sold less  than $2,000 worth of HERBROZAC, so it is not  surprising that Lilly cannot identify consumers  who were actually confused about the origin or  sponsorship of HERBROZAC. Even a statistically  reliable consumer survey would likely require a  greater sampling than the total number of  HERBROZAC customers.


22
Despite these limitations, Judge Hamilton found  a risk of "initial interest confusion." Such  confusion, which is actionable under the Lanham  Act, occurs when a consumer is lured to a product  by its similarity to a known mark, even though  the consumer realizes the true identity and  origin of the product before consummating a  purchase. Dorr-Oliver, 94 F.3d at 382. The  district court relied upon the phonetic  similarity of HERBROZAC to PROZAC , as well as  Natural Answers' use of the "Prozac" metatag on  its Web site, to find a risk of initial interest  confusion.


23
But we are concerned here with evidence of  actual confusion, not a mere risk of confusion,  and we find no such evidence in the record. The  similarity of the two marks is a separate  consideration in our analysis, and although it  does create a risk of confusion, it does not  constitute evidence of actual confusion. The same  can be said of Natural Answers' use of the  "Prozac" metatag: it is evidence of Natural  Answers' intent, see infra, and it creates a risk  of confusion, but it is not evidence of actual  confusion. Such evidence would most likely take  the form of a consumer survey, which would not be  limited to a sampling of HERBROZAC customers  because "initial interest confusion" is complete  prior to any actual purchase. Lilly failed to  take such a survey, or to provide other evidence  of actual confusion. So we must disagree with the  district court that evidence of actual confusion  indicates a likelihood of confusion. We have  previously made clear, however, that evidence of  actual confusion is not essential to a finding of  a likelihood of confusion. E.g., Computer Care v.  Service Sys. Enter., Inc., 982 F.2d 1063, 1070  (7th Cir. 1992).


24
The final factor for consideration is Natural  Answers' intent. Natural Answers urges us to drop  this factor from our analysis, asserting that its  intent (or lack thereof) to confuse consumers is  not probative of whether consumers are likely to  actually become confused. We disagree. The fact  that one actively pursues an objective greatly  increases the chances that the objective will be  achieved, and we have no doubt that this general  principle applies here. For this reason, a  defendant's intent is an "important factor,"  Computer Care, 982 F.2d at 1070; Processed  Plastic Co. v. Warner Communications, Inc., 675  F.2d 852, 857 (7th Cir. 1982), and can even be  weighed more heavily than other factors. See  Schwinn Bicycle Co. v. Ross Bicycles, Inc., 870  F.2d 1176, 1184-85 (7th Cir. 1989).


25
Two facts point to the conclusion that Natural  Answers intended to confuse consumers. First, Mr.  Feinstein admitted that the name HERBROZAC was  coined to remind consumers of PROZAC , in  accordance with Natural Answers' pattern of  adapting famous marks for use in its  Herbscriptions line. Although Natural Answers now  claims that the intent of the name is only to  describe the general function of the product and  to distinguish it from PROZAC , we have a  difficult time believing this innocent  explanation. The HERBROZAC name does nothing--  other than through its reference to the PROZAC mark-- to describe the function of "mood  elevation." If, at the conclusion of this case,  Natural Answers is searching for a new name for  its product that truly describes its function, it  might come up with something like "Natural  Answers' Herbal Mood Elevator," a name that would  describe the product's function but not infringe  upon Lilly's mark.


26
The second fact probative of Natural Answers'  wrongful intent is its references to PROZAC  in  the source codes of its Web site. The clear  intent of this effort, whether or not it was  successful, was to divert Internet users  searching for information on PROZAC  to Natural  Answers' Web site. As the Ninth Circuit explained  in Brookfield Communications, Inc. v. West Coast  Entertainment Corp., 174 F.3d 1036, 1064 (9th  Cir. 1999), "[u]sing another's trademark in one's  metatags is much like posting a sign with  another's trademark in front of one's store." As  such, it is significant evidence of intent to  confuse and mislead. See id. at 1062; New York  State Soc. of Certified Public Accountants v.  Eric Louis Assoc., Inc., 79 F. Supp.2d 331, 341  (S.D.N.Y. 1999) (defendant's bad faith in using  plaintiff's trademark in metatag probative of  likelihood of confusion). Because Natural  Answers' wrongful intent is so obvious, we weigh  it heavily.


27
Having considered each of the relevant factors  in our likelihood of confusion analysis, we  cannot say that the district court erred in  finding such a likelihood. Although the district  court improperly weighed the evidence of actual  confusion, we believe the other factors--  especially the similarity of the marks, the  strength of the PROZAC  mark, and Natural  Answers' intent to confuse--strongly support the  district court's ultimate conclusion.  Accordingly, we affirm the district court's  preliminary injunction under the Lanham Act.


28
Lilly also brought a claim under the Trademark  Dilution Act of 1995, which opens an alternative  avenue of relief for the owners of famous marks.  The Act provides


29
The owner of a famous mark shall be entitled,  subject to the principles of equity and upon such  terms as the court deems reasonable, to an  injunction against another person's commercial  use in commerce of a mark or trade name, if such  use begins after the mark has become famous and  causes dilution of the distinctive quality of the  mark, and to obtain such other relief as is  provided in this subsection.


30
15 U.S.C. sec. 1125(c)(1). Courts recognize two  principal forms of dilution: tarnishing and  blurring. Dilution by tarnishing occurs when a  junior mark's similarity to a famous mark causes  consumers mistakenly to associate the famous mark  with the defendant's inferior or offensive  product. Panavision Int'l, L.P. v. Toeppen, 141  F.3d 1316, 1326 n.7 (9th Cir. 1998). Dilution by  blurring, the injury at issue here, occurs when  consumers "'see the plaintiff's mark used on a  plethora of different goods and services,' . . .  'raising the possibility that the mark will lose  its ability to serve as a unique identifier of  the plaintiff's product.'" Hormel Foods Corp. v.  Jim Henson Prod., Inc., 73 F.3d 497, 506 (2d Cir.  1996) (quoting 3 McCarthy on Trademarks and  Unfair Competition sec. 24.13[1][a][i] (3d ed.  1995) (hereinafter "McCarthy"); Deere & Co. v.  MTD Prods., Inc., 41 F.3d 39, 43 (2d Cir.  1994)).4 The Trademark Dilution Act seeks to  prevent both of these forms of dilution by  "protect[ing] the trademark owner from the  erosion of the distinctiveness and prestige of a  trademark caused by . . . a proliferation of  borrowings, that while not degrading the original  seller's mark, are so numerous as to deprive the  mark of its distinctiveness and hence impact."  Illinois High School Ass'n v. GTE Vantage Inc.,  99 F.3d 244, 247 (7th Cir. 1996). The strongest  protection is reserved for fanciful marks that  are purely the product of imagination and have no  logical association with the product. Nabisco,  Inc. v. PF Brands, Inc., 191 F.3d 208, 216 (2d  Cir. 1999).


31
There are four elements to Lilly's Trademark  Dilution Act claim: (1) the PROZAC  mark is  famous, (2) Natural Answers adopted its HERBROZAC  name after the PROZAC  mark became famous, (3)  use of the HERBROZAC name "causes dilution" of  the PROZAC  mark, and (4) Natural Answers' use of  the HERBROZAC name is commercial and in commerce.  See 15 U.S.C. sec. 1125(c)(1); Syndicate Sales,  Inc. v. Hampshire Paper Corp., 192 F.3d 633, 639  (7th Cir. 1999). The likelihood of confusion, and  whether HERBROZAC competes with PROZAC , are  irrelevant. See 15 U.S.C. sec. 1127. Natural  Answers concedes all but the third element5--  that HERBROZAC "causes dilution" of PROZAC --so  we will focus our attention solely on that issue.


32
As a threshold issue, the parties dispute  whether the "causes dilution" element can be  satisfied by evidence of a mere likelihood of  dilution, or whether proof of actual dilution is  required. The legislative history of the Act does  not specifically address this question, and the  circuit courts to have considered it are divided.  Compare Westchester Media v. PRL USA Holdings,  Inc., 214 F.3d 658, 671 (requiring proof of  actual harm) and Ringling Bros.-Barnum & Bailey  Combined Shows, Inc. v. Utah Div. of Travel Dev.,  170 F.3d 449, 461 (4th Cir.) (same), cert.  denied, 120 S. Ct. 286 (1999) with Nabisco, 191  F.3d at 224-25 (likelihood of dilution  sufficient). See also Times Mirror Magazines,  Inc. v. Las Vegas Sports News, L.L.C., 212 F.3d  157, 179 n.11 (3d Cir. 2000) (dissenting judge  agreeing with majority's implicit holding "that  the District Court did not err in finding that  irreparable injury may be shown even in the  absence of actual economic harm"). With guidance  from these courts, we'll take our own stab at  deciding what "causes dilution" means, reviewing  the district court's statutory interpretation of  that phrase de novo. Komorowski v. Townline Mini-  Mart and Restaurant, 162 F.3d 962, 965 (7th Cir.  1998).


33
In Ringling Brothers, the Fourth Circuit set  out a cogent argument for a restrictive reading  of the Trademark Dilution Act that requires the  plaintiff to submit proof of actual economic  harm. The court observed that state antidilution  statutes--upon which the Trademark Dilution Act  is based--typically prohibit the use of a mark  that creates a "likelihood of . . . dilution of  the distinctive quality of a [senior] mark." 170  F.3d at 456 (quoting Model State Trademark Act  sec. 12 (1964), reprinted in 3 McCarthy sec. 228  (4th ed. 1998)); see also, e.g., N.Y. Gen. Bus.  Law sec. 360-1 ("Likelihood of . . . dilution of  the distinctive quality of a mark . . . shall be  ground for injunctive relief . . . ."); Cal. Bus.  & Prof. Code sec. 14330 (same); Fla. Stat. ch.  495.151 (injunction available if "there exists a  likelihood . . . of dilution of the distinctive  quality of the [senior] mark . . . ."). The  federal Act, on the other hand, does not  incorporate the word "likelihood," which implies  an application to future acts that cause  dilution, but instead employs the present tense  "causes dilution." In addition, whereas state  antidilution statutes generally provide only  injunctive relief, indicating that their purpose  is to prevent future harm, the federal statute  permits injured plaintiffs to obtain damages in  limited circumstances. Ringling Brothers, 170  F.3d at 461. And the conduct proscribed by the  federal statute is "another person's . . . use,"  not merely threatened use, of a protected mark.  Id. Finally, Ringling Brothers found that the  Act's definition of dilution, "the lessening of  the capacity of a famous mark to identify and  distinguish goods or services," "makes plain what  the state statutes may not: that the end harm at  which [the Act] is aimed is a mark's selling  power, not its 'distinctiveness' as such." Id. at  458. Accordingly, the Fourth Circuit held that  the use of a name that erodes the distinctiveness  of a senior mark but does not affect its holder's  bottom line is not actionable under the Act. Id.  at 461. The Fifth Circuit essentially adopted  these conclusions in Westchester Media, 214 F.3d  at 670-71.


34
The Second Circuit rejected Ringling Brothers in  Nabisco, observing that the Fourth Circuit's  reading of the statute would subject senior mark  holders to uncompensable injury. After all, the  primary remedy of the Act is an injunction  against future use of an offending mark; damages  are permitted only when the defendant acts  wilfully. 15 U.S.C. sec. 1125(c)(2). Thus, if the  "causes dilution" element requires proof of  actual economic harm, senior mark holders will be  restrained from bringing suit prior to suffering  an injury for which the Act will not compensate  them in many circumstances. Nabisco, 191 F.3d at  224. By the time plaintiffs were permitted to  file suit, moreover, junior mark holders might  have the defense that the senior mark had lost  its distinctiveness due to the numerous other  marks that have copied it. Senior mark holders  would also be open to the argument that they had  failed actively to protect their marks. Finally,  if adjudication of a Trademark Dilution Act claim  were not possible prior to economic injury,  upstart companies would be unable to seek a  declaratory judgment that their mark is  sufficiently different from a senior mark prior  to expending the funds necessary to launch their  product. Id. Congress could not have intended  these unjust and inefficient results.


35
In addition, the Fourth Circuit's interpretation  of the Act holds plaintiffs to an impossible  level of proof. In the case of an immensely  successful product such as PROZAC , it is  possible that the distinctiveness of its mark  could be diluted even as its sales are  increasing, albeit not increasing as much as they  would in the absence of the offending mark. See  Times Mirror Magazines, 212 F.3d at 179 n.11  (Barry, J., dissenting on other grounds; citing  S. Rep. No. 100-515, at 108 (noting that  distinctive quality of a mark "could be  materially reduced during a period of rising  sales")). Even if diminished revenue could be  shown, moreover, it would be immensely difficult  to prove that the loss occurred as a result of  the dilution of the senior mark. Nabisco, 191  F.3d at 224. Customer surveys, the only other  sufficient means of proof suggested in Ringling  Brothers,6 are expensive, time consuming, and  subject to manipulation. Nabisco, 191 F.3d at  224. In addition, we doubt that dilution of the  distinctiveness of a mark is something that can  be measured on an empirical basis by even the  most carefully constructed survey. It is hard to  believe that Congress would create a right of  action but at the same time render proof of the  plaintiff's case all but impossible. We therefore  side with the Second Circuit and hold that proof  of a mere "likelihood of dilution" is sufficient  to satisfy the "causes dilution" element of  Lilly's case.


36
How then, should we decide whether Lilly has  demonstrated a likelihood of dilution? The Second  Circuit adopted a number of factors from the much  criticized concurrence in Mead Data Central, Inc.  v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d  1026, 1035 (2d Cir. 1989), added several new  factors, and strongly urged courts to think for  themselves about what considerations they believe  are relevant to dilution. Nabisco, 191 F.3d at  227-28. We'll accept the Second Circuit's  invitation and discard a number of the Mead Data  factors that we consider irrelevant.


37
In suggesting a test for dilution under New  York's antidilution statute, the concurring judge  in Mead Data identified the following pertinent  considerations: (1) similarity of the marks, (2)  similarity of the products covered by the marks,  (3) sophistication of consumers, (4) predatory  intent, (5) renown of the senior mark, and (6)  renown of the junior mark. Mead Data, 875 F.2d at  1035. As a number of courts and commentators have  observed, however, several of these factors are  more suited to an inquiry into the likelihood of  confusion. E.g., 4 McCarthy sec. 24: 94.2 (4th ed.  2000). For example, the second factor, the  similarity of the products in question, is  completely irrelevant because the Trademark  Dilution Act explicitly states that dilution can  occur "regardless of the presence or absence of  . . . competition between the owner of the famous  mark and other parties . . . ." 15 U.S.C. sec.  1127. Indeed, the primary application of the Act  is to cases involving widely different goods  (i.e., Kodak pianos and Kodak film). I.P. Lund  Trading ApS v. Kohler Co., 163 F.3d 27, 49 (1st  Cir. 1998). Similarly, the sophistication of  consumers, intent of the junior mark holder, and  renown of the junior mark are all probative of  the likelihood of confusion but not particularly  relevant to the "capacity of [the senior] mark to  identify and distinguish" itself.7 Id. at 49-50. Accordingly, we will consider, as the  district court did, only two of the six factors--  the similarity between the HERBROZAC and PROZAC marks, and the renown of the PROZAC  mark.


38
We already have addressed the similarity between  the two marks at issue and concluded that they  are highly similar. As for our second factor,  PROZAC  has achieved substantial renown. As we  noted earlier, PROZAC  has received an immense  amount of attention from the news media. In  addition to what we have already described,  PROZAC  has been the subject of two national  bestsellers (Peter D. Kramer's "Listening to  Prozac" (1993) and Elizabeth Wurtzel's "Prozac  Nation: Young and Depressed in America" (1994))  and segments on 60 Minutes, Good Morning America,  and the Oprah Winfrey Show. According to a  Baltimore Sun columnist, PROZAC  is "a designer  label, a buzzword, a brand name familiar to . .  . Americans who have taken it, but also [to]  those who wonder if they, too might find a cure  for whatever ails them in the little green-and-  off-white capsule." Given this evidence, we  cannot disagree with the district court's  conclusion that PROZAC  "has achieved  extraordinary fame in American culture." We  therefore affirm the district court's holding  that Lilly has shown a likelihood of success in  proving a likelihood of dilution.


39
We also affirm the district court's assessment  of the remaining preliminary injunction issues.  Irreparable harm is generally presumed in cases  of trademark infringement and dilution. See  Abbott Lab., 971 F.2d at 16 (recognizing the  "well-established presumption that injuries  arising from Lanham Act violations are  irreparable, even absent a showing of business  loss"); American Dairy Queen Corp. v. New Line  Prod., Inc., 35 F. Supp. 2d 727, 729 (D. Minn.  1998) (presuming irreparable harm by dilution).  The brief sales history of HERBROZAC minimizes  any potential harm to Natural Answers posed by  the district court's injunction, especially given  the structure of the injunction, which permits  Natural Answers to continue to market its product  under an alternative name. Finally, the public  interest is served by the injunction because  enforcement of the trademark laws prevents  consumer confusion. Abbott Lab., 971 F.2d at 19;  International Kennel Club, 846 F.2d at 1092 n.8.


40
AFFIRMED.



Notes:


1
 The other five were Gillette disposable safety  razors, Band-Aids, Penicillin, Tampons, and birth  control pills. Any ranking of this sort, of  course, is both subjective and suspect, for  Fortune went on to put Tupperware, the penny  loafer, and the skateboard on its list of 20th  Century bests in the Home, Clothing, and Travel  categories.


2
 Notably, the Herbscriptions line contains one  supplement, ZONK OUT, whose name is not derived  from any other product. ZONK OUT, as its name  suggests, is designed to promote deep sleep.  Feinstein testified that he chose the name ZONK  OUT because he "did not believe that there was a  sleeping preparation out there that was so widely  known with a suffix that would call to mind a  certain function so as to help the consumer know  that [it] . . . would help them sleep."


3
 The Ninth Circuit recently explained the function  of metatags in Brookfield Communications, Inc. v.  West Coast Entertainment Corp., 174 F.3d 1036,  1045 (9th Cir. 1999): Metatags are HTML codes intended to describe the  contents of the web site. There are different  types of metatags, but those of principal concern  to us are the "description" and "keyword"  metatags. The description metatags are intended  to describe the web site; the keyword metatags,  at least in theory, contain keywords relating to  the contents of the web site. The more often a  term appears in the metatags and in the text of  the web page, the more likely it is that the web  page will be "hit" in a search for that keyword  and the higher on the list of "hits" the web page  will appear.


4
 The classic hypothetical examples of dilution by  blurring include DuPont shoes, Buick aspirin,  Schlitz varnish, and Kodak pianos. "No one would  confuse Kodak pianos with Kodak film, but the use  of the name on the piano could dilute its  effectiveness as a mark for the film." I.P. Lund  Trading ApS v. Kohler Co., 163 F.3d 27, 49 (1st  Cir. 1998).


5
 Natural Answers argued before the district court  that PROZAC  is not a famous mark but concedes  the point on appeal. Even without a concession,  however, we agree with the district court's  thorough observations concerning the  extraordinary fame PROZAC  has achieved.


6
 Ringling Brothers states that "relevant  contextual factors," such as the extent of the  junior mark's exposure, the similarity of the  marks, and the strength of the senior mark, are  also relevant. 170 F.3d at 465. The court then  suggests, however, that none of these factors  would alone be sufficient, but would only be  relevant "as indirect evidence that might  complement other proof." Id.


7
 The same can be said of several additional  factors considered in Nabisco: "actual confusion  and the likelihood of confusion, shared consumers  and geographic isolation, the adjectival quality  of the junior use, and the interrelated factors  of duration of the junior use, harm to the junior  user, and delay by the senior in bringing the  action." 191 F.3d at 228. Each of these factors  is either relevant only to likelihood of  confusion, or already is incorporated into our  injunction analysis.


