with a brown rectangular bar underneath with yellow lettering in the bar. The defendant uses a solid brown for its logo, not yellow with brown keylining, and the logo extends over a different area of the package. Its lozenge reverse the colors of the Reese's rectangular bar and uses a tannish yellow. The overall look is different.
The only element the trade dresses have in common is the background orange, but the plaintiff is not claiming protection for orange alone on its preliminary injunction motion.
The next criterion is sophistication of the consumers. This factor works differently in a dilution claim than an infringement claim. Because confusion is an element of an infringement claim, the less sophisticated the consumers, the more likely there is infringement. See Versa Products Co., supra, 50 F.3d at 214. However, the reverse is true in a dilution claim because the more sophisticated the consumers the more likely they will recognize that the mark has become associated with separate sources. See McCarthy, supra, § 24:70, at 24-120 ("dilution presupposes no mental confusion over affiliation or connection, but rather a state of mind that recognizes independent sources and affiliation").
In the instant case the plaintiff argues that its primary customers are in the age group from eight- to 17-years-old, that they are unsophisticated, and that this factor favors Hershey.
However, based on our approach to the sophistication issue, this factor favors the defendant rather than the plaintiff. An unsophisticated consumer would confuse the products, and would not realize that the same mark was being blurred by use on what they knew were two different sources.
The next factor is predatory intent. In the infringement context, the Third Circuit has decided the defendant's intent to copy the plaintiff's trade dress is a weak indicator of infringement. See Versa Products Co., supra, 50 F.3d at 206. Even this weak indicator does not favor the plaintiff. In the instant case, the defendant did not intend to copy the abbreviated trade dress, just the background orange.
The next factor is renown of the senior mark and it favors the plaintiff. We accept for the purposes of this motion that Dr. Jacoby' survey has established the renown of the plaintiff's mark, defined by the plaintiff as its trade dress in the colors of the Reese's package in a certain juxtaposition, and that this factor favors plaintiff. "The greater the fame of the mark, the greater the likelihood that consumers would make mental associations between the famous mark and similar junior marks." Utah Division of Travel Development, 955 F. Supp. at 620. See also Mead Data, 875 F.2d at 1038; B.E. Windows, 937 F. Supp. at 213.
The final factor is the renown of the junior mark. This factor is relevant to a blurring claim because when both the junior and senior marks are well known, it is easier for the junior mark, as an already recognized source, to adopt certain elements of the senior mark, and thus cause consumers to identify the mark with two different sources. As argued by the plaintiff in relying on Utah Division of Travel Development, supra : "Presumably, the potential for dilution is greater where the gap in renown is smaller." 955 F. Supp. 605 at 621 (emphasis added). Here, the plaintiff argues that:
both the REESE'S Trade Dress and the M&M's logo are famous. Indeed, because of the fame of the M&M's brand name, the color scheme which for decades has been associated uniquely with Reese's will quickly be associated with M&M's as well. Consumers will therefore no longer be able immediately to recognize Reese's products by the color scheme alone. This is the essence of dilution.