b. Centrum versus Kal
The Kal labels include a thin band of colors that range from
indigo to blue to green to yellow to orange to red to yellow
again, and then follow the same sequence in reverse. The band
attaches to the green lettering of the name of the product on the
label through the fluid extension of a letter into the band. In
addition, Kal uses a rectangle that includes a gold silhouette of
a human form superimposed over a rectangular background colored
with bands of colors of the visual spectrum ranging from indigo
to red. The color bands are arranged one over another and are
short in width.
The Centrum and Kal marks thus differ in that: (1) Centrum's
color trademark sits independent from any lettering whereas Kal's
thin color bar blends into one letter of the name of the product,
which is written in large green letters; (2) Centrum's trademark
uses thirteen color grades each contained in a rectangle whereas
Kal uses significantly less colors in fluid transition; (3)
Centrum's color band is prominent and the colors are large
whereas Kal's color band is a minor portion of its label and the
band is small; (4) Centrum has nothing like Kal's gold colored
human body silhouette; and (5) Centrum's colors range from blue
to red in the order of left to right whereas Kal's color band
reverses the order of colors in the middle, and the background
colors in the box with the human silhouette vary from indigo to
red in the order of top to bottom.
The dissimilarities between the marks fully support the Court's
conclusion, based on the overall impression made by the exhibits,
that no reasonable trier of fact could find the use of
defendant's labels to create a likelihood of confusion as to
source. The Court determines that, in this case, the appearance
of the marks is dispositive of the issue.
c. Impression of Marks
Plaintiff, however, also argues that its mark conveys an
impression of a rainbow and that defendant's marks create this
impression also, so that a likelihood of confusion exists as to
source. The Court disagrees for a simple reason: even assuming
for purposes of this motion that a rainbow is represented by a
graded display of colors, and that plaintiff's and defendant's
marks could be said to evoke such a concept, the fact remains
that the marks identify significantly different rainbows.*fn8 So
different, in fact, that no likelihood of confusion could exist
when recollecting the marks.*fn9 Further, as has been noted, the
marks do not just use rainbow colors. Centrum uses thirteen
colored rectangles arranged horizontally over a broad band.
Solaray uses five stripes with the word "Solaray" superimposed
over the colors.
Kal uses a color band, large green lettering, and an image of a
gold human body over a color band. Thus, even if all the marks
could be found to convey some impression of rainbows, there is no
connection in the mind between these rainbows or their
Based on the foregoing analysis, the Court will grant summary
judgment against plaintiff on the trademark infringement and
unfair competition claims because plaintiff has failed to present
evidence that a reasonable juror could find a likelihood of
confusion to exist when considering the parties' marks.
B. Trademark Dilution
Plaintiff also charges that use of the Solaray and Kal labels
dilutes Centrum's trademark. The federal anti-dilution statute,
effective January 1, 1996, reads, in pertinent part, as follows:
The owner of a famous mark shall be entitled . . . 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.
15 U.S.C. § 1125(c).
Dilution is defined 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.