Full opinion text
OPINION AND ORDER KINNEARY, District Judge. This matter comes before the Court to consider the motion of the plaintiff, Wor-thington Foods, Inc. (“Worthington”) for a preliminary injunction, to enjoin the defendant, Kellogg Company (“Kellogg”), from selling its “Heartwise” cereal. Fed.R. Civ.P. 65. The plaintiff alleges that Kellogg’s use of the name “Heartwise” is a violation of the trademark, service mark, and certification mark that Worthington Foods purportedly has in the “HEART-WISE” name and logo borne on its products. In the Complaint, Worthington asserts a claim for relief under the Ohio common law of trademark infringement, unfair competition, and dilution, as well as section 43(a) of the Lanham Trade-Mark Act, 15 U.S.C. § 1125(a) (1982), amended by 15 U.S.C.A. § 1125(a) (West Supp.1989). In a memorandum supporting the instant motion, the plaintiff also asserts that it is entitled to relief under the Ohio Deceptive Trade Practices Act, Ohio Rev.Code Ann. §§ 4165.01-4165.04 (Anderson 1980 & Supp.1989). I. CONCLUSIONS OF FACT The parties presented evidence at a hearing before the Court which began on October 18, 1989. Considering the evidence presented at the hearing and the memoran-da submitted after the hearing, the Court reaches the following conclusions of fact. The Court will first discuss Worthington Foods, Inc. and its HEARTWISE mark. Then, the Court will describe Kellogg Company and the development of its Heartwise mark. A. Worthington Foods, Inc. The plaintiff, Worthington Foods, Inc., has sold health food for fifty years and is the world leader in vegetable protein products. The company intends to provide consumers with an alternative to meat products which have certain “unhealthy characteristics.” In fact, a growing number of consumers are paying closer attention to diet. “Worthington Foods serves a growing market whose consumers are concerned about their health and are taking greater interest in their dietary choices.” According to the plaintiff: • 42 percent of U.S. households have at least one member who is on a diet to control cholesterol. • 68 percent of shoppers are switching to foods lower in fat and calories, and 71 percent are looking for foods higher in fiber. • The number of vegetarians in the United States has increased six-fold over the past decade to more than 6 million. • And by 1995, total sales of “healthy foods” are expected to exceed $98 billion annually ... or about one-third of all food purchases. Worthington's president estimates that sales of its products will reach $65 million this year. Worthington produces three lines of products. First, it sells food under the brand name of “Worthington” which it has sold since 1939. Second, the company's most widely distributed line of goods is its “Morningstar Farms” set of products. Third, Worthington produces a smaller line of goods, named “Natural Touch.” The Morningstar Farms line consists of five products distributed nationwide. The Scramblers product is a substitute for eggs. Breakfast Links and Breakfast Patties are vegetable protein foods which look and taste like sausage links and sausage patties respectively. Breakfast Strips are substitutes for bacon. Finally, Grillers are analogous to hamburger patties. Collectively, the vegetable protein substitutes for meat products are called “meat analogs.” The Morningstar Farms line also includes three other products sold under the name of Country Breakfasts, which Wor-thington distributes to selected markets. Each Country Breakfast is a combination of items. One contains French toast and two protein patties. Another contains hash browns, two protein links, and scrambled egg product. The last type of Country Breakfast contains two pancakes, two protein links, and scrambled egg product. In selected markets, Worthington also sells certain chicken analog products within the Morningstar Farms line under the name of Country Crisps. One product is a substitute for battered deep fried chicken patties. The other Country Crisps products look to be chicken nuggets, one with a “zesty” flavor and the other with a “home style” flavor. Displayed on all packages of the products in the Morningstar Farms line is the logo that is the subject matter of this suit. It consists of a yellow circle with a red heart inside. The words “Zero Cholesterol” appear inside the circle, but outside the heart; they traverse the area just inside of the circumference of the circle. Inside the heart, the word “HEARTWISE” appears. The “HEART” part of the word rests just inside the left edge of the heart. “WISE” rests just above the right edge of the heart. Given the ninety-degree angle formed by the left and right edges of the heart, the segments “HEART” and “WISE” also are at a right angle to each other. On the Morningstar Farms items distributed nationally, Breakfast Strips, Breakfast Patties, Grillers, and Breakfast Links, the circular logo is 3.5 cm in diameter and the heart inside is 2 cm wide at its largest point. On the Country Breakfasts, the circular logo is approximately 2.5 cm in diameter and the heart is approximately 1.4 cm wide. Logos of this smaller size appear on the Country Crisp products as well. Worthington developed the HEART-WISE mark with the assistance of an advertising agent late in 1986. The plaintiff did not intend to create a logo and name to reflect the manufacturer’s name, the name of the line of products, or the name of the product itself. For foods bearing the HEARTWISE mark, the name of the line of foods is Morningstar Farms and each individual product has a name such as Gril-lers or Breakfast Strips. Instead, Worthington sought to produce a mark which would distinguish the products even more than the Morningstar Farms name does. Specifically, Worthing-ton wished to establish something analogous to the “Good Housekeeping Seal of Approval,” which would seem to certify the healthy nature of its products. Wor-thington narrowed the field of potential names and finally began using the HEARTWISE mark in February 1987. It has continued to use it from that time until the present. The plaintiff markets its products through brokers. These brokers solicit purchase orders from retail chains. Upon delivery, the chains stock these items in their warehouses. They then distribute the goods among their retail stores as they see fit. The retail stores stock the Morning-star Farms items in frozen food chests or freezer cases. These containers appear in the frozen foods section of the grocery stores. Worthington’s has spent $3.4 million on advertising since 1987. Worthington has advertised in national magazines such as U.S. News and World Report, Newsweek, Prevention, and Reader’s Digest, It also places advertisements in newspapers. Moreover, its advertisements appear in special advertisement tabloids distributed by grocery stores. It also sends out direct mailings to consumers. Advertising materials used in the grocery store include an “angler,” which is a plastic card hanging over the price rail of a freezer case to draw attention to the product. Also, Worthington uses “neck hangers” on Puritan Oil bottles. A neck hanger is a cardboard card which rests on top of an oil bottle; the neck of the bottle fits through a hole in the card. Furthermore, Worthington provides stores with stickers bearing the HEARTWISE mark and design for use on freezer case glass doors. Finally, Worthington hands out coupons in stores, and places them on cartons of certain Morningstar Farms products as well as on products of other companies. Worthington also pays its brokers a fee for their marketing services and has spent $3.4 million in such fees since 1987. In addition, Worthington makes certain price concessions in the form of discounts for grocery stores (“trade deals”). It has spent $7 million on such concessions since 1987. Fees for brokers are approximately four percent of sales and trade deals amount to about eight percent of sales. Given that sales in 1990 will be approximately $66 million and $75 million next year, fees for brokers and trade deals will amount to $7.92 million in 1990 and $9 million in 1991. In the future, Worthington plans to increase production, having embarked upon a capital improvements project. Moreover, the plaintiff contends that it signed a letter of intent to acquire a company that manufactures food very similar to Worthing-ton’s; this company makes ready-to-eat cereal in the form of breakfast “biscuits,” which it calls “Ruskets.” B. Kellogg Company Kellogg Company’s U.S. Food Product Division produces ready-to-eat cereal for the American market. Consumers normally eat ready-to-eat cereal simply by pouring the cereal out of the box into a bowl and drenching it in milk. Kellogg’s executive vice president for marketing and sales in the U.S. Food Products Division, William Weintraub, estimated that 93% of American households stock ready-to-eat cereal and Kellogg products are in 84% of households. Kellogg produces a large number of different cereals, appealing to different segments of the ready-to-eat cereal market. Many people are concerned with limiting the amount of cholesterol they ingest. Appealing to this market, Kellogg produced a cereal named “Heartwise.” The cereal package contains a discussion of a finding of the Henry Ford Hospital Heart and Vascular Institute that a diet low in fat and high in soluble fiber can lower cholesterol levels. Kellogg markets two kinds of Heartwise cereal, one with prunes added and one without. Displayed on all packages of Heartwise cereal is the other mark which is the subject of this suit. The word “Heartwise” appears in a 15.2 cm by 6.6 cm rectangle on the front of each cereal box; it extends approximately 13 cm and the letter “H” is 2.7 cm high. Appearing directly next to the final “e” in “Heartwise” is a small “TM.” Above the rectangle containing “Heartwise” is the “house mark” of the Kellogg Company: the word “Kellogg’s” written in script which is a facsimile of the signature of the company’s founder, W.K. Kellogg. The word “Heartwise” also appears on both sides of the box underneath the “Kellogg’s” house mark. Kellogg also placed the word on the top and bottom of each cereal box. Prominently displayed here as well is the “Kellogg’s” house mark. Kellogg began developing the formula for Heartwise cereal in January 1985. The cereal contains a grain called psyllium which is high in soluble fiber; soluble fiber is the ingredient in the cereal which may help to reduce cholesterol. Kellogg considered between seventy-five and one hundred names before deciding to use the “Heartwise” mark. Kellogg uses the mark to convey the message to consumers that the cereal “can be part of a diet that is ... wise ... for your heart.” Kellogg consulted a number of trade name directories and computerized data bases to determine if other companies were making significant usage of the trademark “Heartwise.” Such searches did not reveal Worthington’s use of the mark. Kellogg knew that Worthington had sought a federal trademark for “HEARTWISE” and the heart-shaped design Worthington now uses, but that the U.S. Patent and Trademark Office had labelled the application as “abandoned.” Kellogg, however, was unaware of the existence of the Morning-star Farms line and its use of the HEART-WISE mark in spite of the abandoned application. Given Kellogg’s conclusion that no registered trademark existed in “Heart-wise” and that no company was making significant use of it, the defendant chose Heartwise as the name of its cereal. It claims that it did not intend to use the name in order to take advantage of Wor-thington’s goodwill in the name. Kellogg markets its cereal products by employing a direct sales force which attempts to solicit purchase orders directly from retail chains. Of course, once the retail chains receive the goods in their warehouses, they ship the product to the stores at the time and place which they may choose. When the cereal reaches the retail stores, the store employees place it in the ready-to-eat cereal aisle among other such cereals. Indeed, Heartwise, like other Kellogg products, is likely to appear on the cereal aisle next to other Kellogg ready-to-eat cereals. Kellogg’s advertising budget is considerable. The amount allocated for late 1989 was approximately $18,064,000. In 1990, Kellogg plans to spend $34,100,000. A portion of its advertising consists of television commercials; the defendant’s budget for television ads shown in late 1989 was seven or seven and one-half million dollars. Kellogg also plans to place magazine advertisements. Finally, the defendant places coupons in Sunday newspapers. II. THE STANDARD FOR PRELIMINARY INJUNCTIONS To determine whether a preliminary injunction is appropriate, the Court must consider four factors: first, whether the movant has shown a strong or substantial likelihood of success on the merits of the lawsuit; second, whether the movant has shown irreparable injury which it is suffering or will suffer if the preliminary injunction is not granted; third, whether the preliminary injunction will cause substantial harm to others; and finally, whether the preliminary injunction is in the public interest. See, e.g., Frisch’s Restaurant, Inc. v. Shoney’s Inc., 759 F.2d 1261, 1263 (6th Cir.1985) (Lanham Act case); In re DeLorean Motor Co., 755 F.2d 1223, 1228 (6th Cir.1985); Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 564-65 (6th Cir.1982). The standard for a preliminary injunction is flexible and the four factors are not prerequisites to be met but instead the Court must balance them. See Frisch’s, 759 F.2d at 1263; DeLorean, 755 F.2d at 1229. That is, a strong showing of irreparable harm, decidedly outweighing harm to the defendant, may justify an injunction even where the movant cannot make a strong showing of likelihood of success on the merits, as long as the plaintiff can show serious questions going to the merits of the suit. Id. The courts have used a similar formulation of the standard for preliminary injunctions in cases filed under sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. § 1114(1) (1982); 15 U.S.C.A. § 1125(a) (West Supp.1989) (amending 15 U.S.C. § 1125(a) (1982)). These courts noted that a movant may merit preliminary injunctive relief simply upon a showing of irreparable harm and either a likelihood of success on the merits or “sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Frisch’s Restaurants, Inc. v. Elby’s Big Boy, Inc., 670 F.2d 642, 651 (6th Cir.) (quoting Warner Bros., Inc. v. Gay Toys, Inc., 658 F.2d 76, 78 (2d Cir.1981)), cert. denied, 459 U.S. 916, 103 S.Ct. 231, 74 L.Ed.2d 182 (1982); Central Benefits Mutual Ins. Co. v. Blue Cross and Blue Shield Ass’n, 711 F.Supp. 1423, 1432 (S.D.Ohio 1989); see National Bd. of YMCA v. Flint YMCA, 764 F.2d 199, 201 (6th Cir.1985) (quoting Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1193-94 (2d Cir.1971)); Frisch’s, 759 F.2d at 1264, 1270. The Court, in determining the merits of the plaintiffs motion here, will first discuss Worthington’s likelihood of success on the merits. This analysis will affect the Court’s determination of the other factors which the Court must consider in assessing the appropriateness of injunctive relief. The Court will then turn to an analysis of possible irreparable injury to the plaintiff, the second factor to be considered. The Court will then discuss harm which the injunction could visit upon persons other than the plaintiff, the third factor, and finally, the Court will assess the impact of an injunction on the public interest. The Court will then reach a conclusion as to whether preliminary relief is justified. III. LIKELIHOOD OF SUCCESS ON THE MERITS To determine Worthington’s likelihood of success on the merits, the Court must take up two questions. First, the Court must determine upon what Kellogg allegedly infringed. Specifically, it is important to understand the nature of the mark which is the subject of this suit. Second, the Court must ascertain how Kellogg allegedly infringed upon Worthington’s mark. Wor-thington asserts different theories of infringement. Thus, the Court must identify these theories and assess whether Wor-thington can show a likelihood of success under any one of them. Worthington, in its Complaint, asserts protection for the “HEARTWISE” name and heart-shaped design as a trademark, service mark, and certification mark. The Court finds it unlikely that Worthing-ton will prevail in showing that it has a service or certification mark which the law could protect. Instead, the Court holds that Worthington must proceed on the theory that “HEARTWISE” is a trademark, rather than a service or certification mark. A service mark identifies and distinguishes the services of one person from the services of others. 15 U.S.C.A. § 1127 (West Supp.1989) (amending 15 U.S.C. § 1127 (1982 & Supp. V 1987)). It does not identify goods. 1 J. McCarthy, Trademarks and Unfair Competition § 4:4, at 128 (2d ed. 1984). The record contains no evidence that Worthington provides anything but food goods under the HEART-WISE name. Accordingly Worthington cannot assert an action for infringement of a service mark. Also, HEARTWISE is not a certification mark. A certification mark is one which the owner allows another person to use in commerce for certifying “regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics” or that union members performed the work or labor for the goods or services. 15 U.S.C.A. § 1127; 1 J. McCarthy, supra note 62, § 19:32, at 945. “A symbol is not used as a certification mark if it is used to certify the owner’s own products.” Id. at 948. Since Worthington uses the HEART-WISE mark for placement on its own goods, the mark does not fall within the category of “certification marks.” Nevertheless, Worthington hoped that its HEARTWISE mark would function similarly to the way a certification mark would. Specifically, Worthington intended the mark to certify that its Morningstar Farms products meet its own standards of quality and healthiness, that it is wise for the consumer’s heart. Gf 1 J. McCarthy, supra note 62, § 19:32, at 945 (describing true certification marks). That is, Wor-thington intended the mark to be analogous to the “Good Housekeeping Seal of Approval.” If Worthington had set certain standards and allowed other manufacturers to use the mark, it would serve as a true certification mark of the “Seal of Approval” variety. Since Worthington itself used the mark, it cannot be a certification mark, but given that Worthington intended it to function much as a “Seal of Approval,” the HEARTWISE mark is not only a trademark, it could also be described as a “pseudo-certification mark.” Having properly defined the type of mark which the plaintiff holds, it is now possible to identify how it was that Kellogg allegedly infringed upon Worthington’s mark. Worthington alleges four theories of recovery in its Complaint. First, it contends that Kellogg infringed upon Wor-thington’s trademark. Second, Worthing-ton posits that Kellogg engaged in unfair competition under section 43(a) of the Lan-ham Act, 15 U.S.C.A. § 1125(a) (West Supp. 1989). Third, Worthington argues that Kellogg’s actions constitute unfair competition under the common law of Ohio. Finally, Worthington asserts a dilution claim against Kellogg under the common law of Ohio. In the memorandum in support of the motion for preliminary injunction, Wor-thington also argues that it has a claim based on the Ohio Deceptive Trade Practices Act, Ohio Rev.Code Ann. §§ 4165.01-4165.04 (Anderson 1980 & Supp.1989). These federal and state laws give trademark, service mark, and certification mark holders a certain bundle of rights. Not every right, however, receives the protection of both federal and state law. Therefore, the Court finds it important to distinguish between the rights protected by the Lanham Act and those actionable under Ohio statutory and common law. International Order of Job's Daughters v. Lindeberg and Co., 633 F.2d 912, 915 (9th Cir.1980), cert. denied, 452 U.S. 941, 101 S.Ct. 3086, 69 L.Ed.2d 956 (1981). Accordingly, the Court will now describe the relevant statutes and the common law, their relation to each other, and the theories of infringement actionable pursuant to them. After discussing the relevant laws, the Court will describe each theory in turn, clarifying which body of law supports it. More specifically, the Court will consider the four theories upon which a plaintiff can proceed under the Lanham Act, the Ohio Deceptive Practices Act, and Ohio common law: palming off, the related goods doctrine, confusion of sponsorship, and reverse confusion of sponsorship. In addition, a fifth theory is available only under Ohio common law: dilution. Following a discussion of these theories, the Court will reach a conclusion as to whether the plaintiff has shown a likelihood of success under such theories, or at least sufficiently serious questions going to the merits to make them a fair ground for litigation. A. The Relevant Laws Under section 43(a)(1) of the Lan-ham Act, any person using a word, name, or false designation of origin in connection with the sales of goods, which is likely to cause confusion or to deceive the public as to the sponsorship of the person’s goods, is liable to any person damaged. 15 U.S.C.A. § 1125(a)(1) (West Supp.1989) (amending 15 U.S.C. § 1125(a) (1982)). Section 43(a) supports actions for trademark infringement because the use of another’s trademark, a name, symbol, or device, may create confusion as to the “origin” of his goods or as to an “affiliation, connection, or association” between his goods and the trademark holder. The Ohio Deceptive Trade Practices Act is substantially similar to section 43(a) of the Lanham Act. See Ohio Rev.Code Ann. § 4165.02 (Anderson 1980). In fact, an analysis appropriate for a determination of liability under section 43(a) of the Lan-ham Act is also appropriate for determining liability under the Ohio Deceptive Trade Practices Act. See, e.g., Mister Twister, Inc. v. JenEm Corp., 710 F.Supp. 202, 203, 204 (S.D.Ohio 1989); Barrios v. American Thermal Instruments, Inc., 712 F.Supp. 611, 613 (S.D.Ohio 1988); Jewel Cos. v. Westhall Co., 413 F.Supp. 994, 999 (N.D.Ohio 1976), aff'd, 575 F.2d 1176 (6th Cir.1978); Cesare v. Work, 36 Ohio App.3d 26, 26, 28, 520 N.E.2d 586, 589, 590 (1987) (paragraph one of the syllabus). For the most part, the Ohio Deceptive Trade Practices Act codified the Ohio common law of trademarks. Yet, the Act does not prevent plaintiffs from relying on it and the common law simultaneously. Ohio Rev.Code Ann. § 4165.02. Therefore, the theories of trademark infringement liability recognized under the Deceptive Trade Practices Act are also actionable under the common law. Moreover, the elements that tend to show trademark infringement and unfair competition under section 43(a) are appropriate for assessing a trademark infringement action under Ohio common law. See Mister Twister, 710 F.Supp. 203, 204. Accordingly, the theories of infringement actionable under the Lanham Act and the Ohio Deceptive Trade Practices Act are also actionable under the common law. Having presented the applicable laws, the Court will now consider whether Wor-thington has shown a likelihood of success on the four theories cognizable under section 43(a) of the Lanham Act, the Ohio Deceptive Trade Practices Act, and the Ohio common law: palming off, the related goods doctrine, confusion of sponsorship, and reverse confusion of sponsorship. Following that analysis, the Court will consider the plaintiffs dilution action, which only the common law recognizes. B. Palming Off Palming off occurs when a defendant attempts to bring about consumer confusion by causing consumers to purchase its products under the mistaken belief that they are in fact purchasing the plaintiffs goods. Ameritech, Inc. v. American Information Technologies Corp., 811 F.2d 960, 964 (6th Cir.1987) (under Ohio common law); see Frisch’s Restaurants, Inc. v. Elby’s Big Boy, Inc., 670 F.2d 642, 645, 646-47 & n. 3 (6th Cir.) (under section 43(a) of the Lanham Act), cert. denied, 459 U.S. 916, 103 S.Ct. 231, 74 L.Ed.2d 182 (1982). Palming off involves directly competing goods. See Ameritech, 811 F.2d at 964. The usual palming off case “involves a junior user who is attempting to trade on the goodwill associated with the well-established senior user’s product.” Love v. New York Times Co., 691 F.2d 261, 264 (6th Cir.1982). Section 43(a) establishes liability against persons who use the trademarks of others “to cause confusion” or “to deceive ... as to the origin” of his or her goods. 15 U.S.C.A. § 1125(a)(1) (West Supp.1989). Thus, the plain language of new section 43(a) encompasses palming off actions. Palming off also constitutes a “false designation of origin” and was therefore actionable under old section 43(a). Frisch’s, 670 F.2d at 646-47. New section 43(a) retains the “false designation of origin” language which provides an alternative basis for supporting a palming off action. Also, the Ohio Deceptive Trade Practices Act expressly encompasses passing off. Ohio Rev.Code Ann. § 4165.02(A) (Anderson 1980) (“[pjasses off goods or services as those of another”). Passing off is also actionable under the Act because it causes a “likelihood of confusion or misunderstanding as to the source ... of goods.” Id. § 4165.02(B). Finally, the common law of Ohio permits plaintiffs to recover under the palming off theory. See, e.g., Ameritech, 811 F.2d at 964. The plaintiff has not “stressed the point that Kellogg may ‘palm off’ its products as Worthington Foods’ products.” Post-Hearing Memorandum of Worthington Foods at 16. Nevertheless, the plaintiff does wish to assert the theory since it believes that palming off is a “possibility.” Transcript at 1-54 (testimony of Dale Twomley). To evaluate Worthington’s likelihood of success under the palming off theory, the Court will undertake a two-part analysis. First, the Court will determine whether consumer confusion is likely. Second, the Court will ascertain whether the plaintiff has shown that its and Kellogg’s products compete directly. The plaintiff must show both a likelihood of confusion and direct competition in order to demonstrate a likelihood of success under the palming off theory. The Court must examine eight factors to determine whether the allegedly infringing trade or service mark results in a “likelihood of confusion” among consumers. Specifically, they are; “(1) the strength of plaintiff’s trademark; (2) the relatedness of the goods; (3) the similarity of the trademarks; (4) the evidence of actual confusion; (5) the marketing channels used; (6) the likely degree of purchaser care; (7) the defendant’s intent in selecting the trademark; and (8) the likelihood of expansion of product lines.” Ameritech, 811 F.2d at 966. These factors “imply no mathematical precision, and a plaintiff need not show that all, or even most, of the factors listed are present in any particular case to be successful.” Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1186 (6th Cir.1988). Instead, they are “simply a guide to help determine whether confusion would be likely to result from simultaneous use of the two contested marks.” Id. The Court will now examine these eight factors to determine whether or not Worthington can show a likelihood of consumer confusion. 1. Strength of Worthington’s HEART-WISE Mark Putative trademarks fall within four categories, (i) arbitrary or fanciful, (2) suggestive, (3) descriptive, and (4) generic. Burke-Parsons-Bowlby Corp. v. Appalachian Log Homes, Inc., 871 F.2d 590, 594 (6th Cir.1989); Little Caesar Enters., Inc. v. Pizza Caesar, Inc., 834 F.2d 568, 571 (6th Cir.1987); Induct-O-Matic Corp. v. Inductotherm Corp., 747 F.2d 358, 362-63 (6th Cir.1984) (quoting Miller Brewing Co. v. G. Heileman Brewing Co., 561 F.2d 75, 79 (7th Cir.1977), cert. denied, 434 U.S. 1025, 98 S.Ct. 751, 54 L.Ed.2d 772 (1978)). These categories are not discrete, however, but instead describe points on a. spectrum ranging from strong to weak; accordingly, the line between these types of marks is fine and a mark may fall within the hazy area between two categories. See 1 J. McCarthy, supra note 62, § 11:1, at 433-34. Fanciful and arbitrary marks are the strongest types of marks. Little Caesar, 834 F.2d at 571. “A ‘fanciful’ mark is a combination of letters or other symbols signifying nothing other than the product or service to which the mark has been assigned {e.g., Exxon, Kodak).” Id. Arbitrary marks are slightly different. “An ‘arbitrary’ mark has a significance recognized in everyday life, but the thing it normally signifies is unrelated to the product or service to which the mark is attached. {e.g., Camel cigarettes or Apple computers).” Id. Two relatively weaker sorts of trademarks are suggestive and descriptive marks. See Induct-O-Matic, 747 F.2d at 362-64 (suggestive mark was not considered “strong” in application of the likelihood of confusion test). Suggestive marks, though, are stronger than descriptive marks. See 1 J. McCarthy, supra note 62, § 11:1, at 433. “A suggestive term suggests rather than describes an ingredient or characteristic of the goods and requires the observer or listener to use imagination and perception to determine the nature of the goods.” Induct-O-Matic, 747 F.2d at 362 (quoting Miller, 561 F.2d at 79). Suggestive terms are protectible without proof of a secondary meaning attached to the mark. Id. at 362-63 (quoting Miller, 561 F.2d at 79). Proof of secondary meaning is evidence that the consumers accept and recognize a mark as denoting only one seller or source. 1 J. McCarthy, supra note 62, § 11:9, at 453-54. A trademark is descriptive “if it describes: the intended purpose, function or use of the goods; the size of the goods; the class of users of the goods; a desirable characteristic of the goods; or the end effect upon the user.” Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1190 (6th Cir.1988), quoted with approval in Burke-Parsons-Bowlby, 871 F.2d at 594; see Induct-O-Matic, 747 F.2d at 362 (quoting Miller, 561 F.2d at 79). “If the mark ‘imparts information directly, it is descriptive.’ ” Burke-Parsons-Bowlby, 871 F.2d at 594 (citation omitted). More specifically, descriptive trademarks directly convey the characteristics, functions, or qualities of a product to persons who are unfamiliar with it. 1 J. McCarthy, supra note 62, § 11:6, at 446. Descriptive marks are unprotectible unless the holder can show secondary meaning. Burke-Parsons-Bowlby, 871 F.2d at 594; Wynn, 839 F.2d at 1190; see Induct-O-Matic, 747 F.2d at 362 (quoting Miller, 561 F.2d at 79). “Generic” words are the weakest items on the spectrum. “A generic or common descriptive term is one which is commonly used as the name or description of a kind of goods. It cannot become a trademark under any circumstances.” Induct-O-Matic, 747 F.2d at 362 (quoting Miller, 561 F.2d at 79). The plaintiff claims that HEARTWISE is a strong trademark. It does not have a perceptible meaning to anyone hearing it for the first time and it is not descriptive of the products Worthington sells. Indeed, assuming that consumers take HEART-WISE to mean “wise for one’s heart,” it may refer to running shoes, a treadmill, a calorie counter, or an Ann Landers newspaper column. Until Kellogg, no other food producer had found it desirable to include “HEARTWISE” on its packaging. Moreover, Worthington alludes to the HEARTWISE mark’s economic and marketing strength, that is its fame and recognition within the relevant consumer group, aside from its inherent nature or station on the spectrum of marks. See generally 1 J. McCarthy, supra note 62, § 11:24, at 503-05. An indirect measure of such recognition is the firm’s advertising budget. Wor-thington’s advertising budget is relatively large and the plaintiff contends that it has given the consumers an understanding of HEARTWISE as representing the plaintiff's line of healthy breakfast foods. It contends that it has already spent $10 million to $13 million on advertising and trade promotions for the HEARTWISE line of products. See supra text accompanying notes 25-36. Moreover, some of its advertisements have appeared in certain national magazines. See supra text accompanying note 26. Finally, Worthington has distributed 35 million packages of food bearing the HEARTWISE mark since 1987. Transcript at 1-146 (testimony of William Kirk-wood). The defendant counters by arguing that the mark is descriptive; it tells the consumer that the product is “WISE” to eat because it is good for the “HEART.” That is, HEARTWISE itself conveys a message. Also, given that the plaintiff abandoned its attempted registration of “Heart Wise and Design,” see supra text accompanying notes 49-50, it concludes that the plaintiff itself believes the mark to be weak. The Court agrees with the plaintiff that HEARTWISE, assuming it means “wise for one’s heart,” may refer to a large number of goods or services, such as running shoes, a treadmill, a calorie counter, or an Ann Landers newspaper column. That is, in a vacuum, the mark does not directly describe any particular item. This argument, however, proves nothing. Even an obviously descriptive mark such as BLUE RIBBON does not bring to mind an exact product, but instead may refer to a myriad of products which may merit blue ribbons at contests, such as pies, cake, and pickled vegetables. Therefore, the mark cannot escape from the descriptive category simply because it does not bring to mind any one product when scrutinized in the abstract. In any case, the Court must now place the HEARTWISE mark on the spectrum of marks. In doing so, the Court finds that the plaintiff’s mark is neither fanciful nor arbitrary. Unlike fanciful marks, HEARTWISE signifies more than simply the Morningstar Farms foods to which Worthington assigned it; the Court agrees with the defendant that the mark tells the consumer that the product is “WISE” to eat because it is good for the “HEART.” Also, HEARTWISE is not arbitrary. HEARTWISE has a significance to the consumer recognized in everyday life, being wise for the heart. Unlike arbitrary marks, this significance is directly related to the Morningstar Farms foods to which it is attached. The Court also finds, though, that the mark is not generic. The word “HEART-WISE” is not commonly used to describe microwaveable meat analog hot foods or meals. For example, consumer would not ask for a “HEARTWISE” when seeking a country-style breakfast containing a meat analog product. The only remaining possibility is that the mark falls within either the suggestive classification or the descriptive category. Certainly, the mark has a descriptive element to it. That is, Worthington intended HEARTWISE to convey to the consumers as directly as possible an encapsulated message that the food is wise for the heart. Nevertheless, the consumer must also use a certain degree of imagination in gathering the message of healthiness from the mark. The consumer must understand the process by which the product can be wise for the heart before apprehending and understanding the message. In that sense, the mark seems to be suggestive as well. The distinction between suggestive and descriptive marks is fine and Worthing-ton’s mark seems to fall within the grey area between these categories. Professor McCarthy, however, presents six factors that the Court considers helpful in distinguishing between suggestive and descriptive trademarks here. 1 J. McCarthy, supra note 62, § 11:22, at 497-98. Two of these factors are particularly relevant in this case. First, the distinction between suggestive and descriptive marks turns in part on how much imagination a buyer must use to “cull a direct message from the mark about the quality, ingredients or characteristics of the product or service.” Id. at 497; see generally id. § 11:21, at 491-93. Second, and more specifically, it is helpful to decide whether the trademark directly conveys “a real and unequivocal idea of some characteristic, function, quality or ingredient of the product or service to a potential buyer who is not completely familiar with all aspects of the product.” Id. at 497. This direct conveyance is in contrast with the nature of a suggestive mark. A suggestive mark may convey information but only with “some reflection” or after a “multistage reasoning process” on the part of the buyer. Id. at 498. Here, the Court finds that a multi-stage reasoning process is necessary before the consumer can cull the message conveyed by the mark. The mark “HEARTWISE” may immediately convey the message “wise for the heart.” Yet, consumers must also reflect upon the low-fat, low-cholesterol nature of the food and the connection between cholesterol and heart disease before fully comprehending the message. Thus, stage one of a consumer’s reasoning process takes place when the HEART-WISE mark invokes a concern about the health of the heart. Stage two is the consumer's apprehension of the low-cholesterol nature of the food, which the words “ZERO CHOLESTEROL,” appearing outside the HEARTWISE design, aid. See Appendix A (facsimile of Breakfast Strips package). Stage three is the recollection in the consumer’s mind of the connection between cholesterol and heart disease. Finally, stage four of the process is the inference that the food, which has no cholesterol, is “wise for the heart” because it reduces the chance of heart disease stemming from excessive cholesterol. Of course, a consumer leaps through these stages of reasoning rapidly and spends little time in analyzing each. Nevertheless, the only way for a consumer to receive the mark’s message is to go through this multi-stage reasoning process. The consumer cannot directly cull a message concerning the healthy characteristics of the good simply from looking at the mark; rather, perception of the message is indirect. Therefore, although the question is close, the Court holds that HEARTWISE falls within the suggestive category. As a suggestive mark, HEARTWISE does not fit within the categories traditionally considered to be “strong,” fanciful and arbitrary marks. HEARTWISE is weaker than fanciful and arbitrary marks. Nonetheless, HEARTWISE is stronger than marks traditionally considered to be “weak,” marks which are descriptive. Instead, HEARTWISE falls within a middle ground, neither weak nor strong. The actual market performance or consumer recognition of the plaintiff's mark in the marketplace, aside from the inherent nature of HEARTWISE as a suggestive mark, is also equivocal. Although advertising for the Worthington products is extensive, it did not necessarily create actual consumer recognition of the HEARTWISE mark. Since Morningstar Farms and the particular names of the products, such as Grillers, are much more prominent than the HEARTWISE mark on Morningstar Farms packages, Worthington’s large advertising budget may have raised recognition of the Morningstar Farms name and the names of the individual products, but not the HEARTWISE mark. In sum, the plaintiff’s mark, as a suggestive mark, is neither strong nor weak, and the de-emphasis of the HEARTWISE mark in comparison with the Morningstar Farms mark and the name of individual products within the line casts doubt on the recognition of the mark in public in spite of Wor-thington’s significant advertising budget. Therefore, on the current record, the Court concludes that the first factor to be considered in assessing the likelihood of confusion, strength of the plaintiff’s mark, neither increases nor decreases the likelihood of confusion. 2. Relatedness of the Goods The second factor to consider in assessing the likelihood of confusion is the relatedness of the parties’ goods. The plaintiff contends that its breakfast foods are related to Kellogg’s cereal. Indeed, Worthing-ton must, and indeed does, contend that its HEARTWISE line of breakfast foods is similar to Kellogg’s cereal to the extent that the parties’ goods compete directly; such an argument is necessary in order to support its palming off theory. The plaintiff argues that its substitute eggs, sausage links, sausage patties, meat strips, french toast, pancakes, and hash browns as well as Kellogg’s Heartwise cereal are all easy-to-prepare, reasonably-priced breakfast foods found in the grocery store. Transcript at 1-30 (testimony of Dale Twomley). They provide nourishment in the morning meal and thus all serve the same function. In that sense, even a grapefruit could serve as a substitute for Worthington’s products and would be a competing product. Transcript at 1-109 (testimony of Franklin Poston). Worthington contends that some consumers choose Kellogg’s cereal in favor of Worthington’s products. This choice entails that such consumers are choosing one “HEARTWISE” product over another and are not likely to eat both. Post-Hearing Memorandum of Worthington Foods at 14-15. Worthington’s essential point is that there is a group of consumers who would purchase Kellogg’s cereal instead of one of Worthington’s products and the plaintiff would lose sales as a result. See Transcript at 1-109 (testimony of Franklin Po-ston). The defendant replies by noting that the meat analog products of the defendant are not at all like Kellogg’s Heartwise cereal. Consumers easily can differentiate between cold breakfast cereal on one hand and cooked egg, sausage, french toast, and pancake products on the other. Worthington’s foods, which requires cooking preparation, are substitutes for traditional breakfast items such as eggs, sausage links, sausage patties, bacon, french toast, pancakes, and hash browns. Kellogg’s product, on the other hand is a cereal. It consists of crunchy flakes or nuggets and consumers eat it cold with milk. One analogous body of law sheds light on the issue of direct competition between goods, namely market definition under section 2 of the Sherman Anti-Trust Act, 15 U.S.C. § 2 (1982). Professor McCarthy, in his seminal trademark treatise, states that products which are “competitive” for purposes of trademark analysis are “goods which are reasonably interchangeable by buyers for the same purposes.” 2 J. McCarthy, supra note 62, § 24:6, at 182 (citing United States v. Grinnell Corp., 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966) (central station security services are in a distinct relevant market); Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962) (in analysis of section 7 of the Clayton Act, men’s, women’s and children’s shoes were in separate relevant submarkets); United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264 (1956) (cellophane is in the same relevant market with other wrapping materials)). Determining whether products are “reasonably interchangeable” is the analysis which the Court must undertake when defining the relevant product market in an action under section 2 of the Sherman Act. The Court holds that the same analysis is helpful for determining whether the parties’ goods are “directly competing” for purposes of assessing palming off liability. A relevant product market includes all products that are either identical or available substitutes for each other. White and White, Inc. v. American Hosp. Supply Corp., 723 F.2d 495, 500 (6th Cir.1983). To determine whether products are “available substitutes” or “reasonably interchangeable,” the Court must first scrutinize the uses of the product. It must assess whether the products can perform the same function. Id. The second factor to weigh is consumer response, or more specifically, cross-elasticity. That is, the Court must assess to what extent consumers will choose substitutes for the parties’ goods in response to price increases. White and White, 723 F.2d at 500. Here, the Court finds that the uses of Worthington’s products are different from those of Kellogg’s goods. On one hand, consumers purchasing Worthington’s products seek a hot meal, brought from a frozen to a hot state in a microwave or regular oven. On the other hand, consumers place ready-to-eat cereals in a bowl, unheated, and pour cold milk on them. Cereal consumers choose Heartwise cereal when they desire, or are willing to eat, a cold meal. Worthington argues, however, that in a broad sense any inexpensive breakfast food could be a substitute for its products. All such foods provide nourishment to some extent at the morning meal and for that reason they serve the same function. The Court, though, rejects this argument; it sweeps too broadly. Worthington is correct in noting, as a theoretical matter, it is possible that any food could be a substitute for any other; if Worthington’s products became unavailable or prohibitively expensive, people would find something else to eat. Nevertheless, as a practical matter this is not true. Only certain foods are likely, reasonable substitutes for others in the context of today’s wealth of foods available in modern grocery stores. That is, if eggs were unavailable, a consumer would not need to turn to asparagus, but instead could purchase closer substitutes such as Scramblers or cheese. Thus, the relevant market is much more limited than the unreasonably broad purported market consisting of “inexpensive breakfast foods.” Moreover, although consumers use both products as a healthy food, Worthington’s products have a special use as meat analogs, a use which Kellogg’s cereal does not share. Worthington’s products are direct substitutes for meat, eggs, and so on. These products look, taste, and have the same texture as real meat and eggs. By contrast, Heartwise cereal consists of dry, crunchy flakes or nuggets. They cannot possibly serve as meat or egg analogs. The second market factor to be considered is consumer response or cross-elasticity. Unfortunately, the parties did not present evidence concerning any tendency or lack of tendency of consumers to switch from the plaintiff's products to the defendant’s if Worthington were to raise its prices or vice versa. Therefore, the Court cannot conclude that the plaintiff has demonstrated cross-elasticity of the parties’ products indicating that their goods are in the same relevant market. In short, on an examination of the current record, the Court, finds that Worthing-ton’s goods are not in the same relevant market as Kellogg’s cereal. The parties’ products have different uses or functions. Also, the Court has no evidence of any degree of cross-elasticity between the plaintiff’s foods and the defendant’s cereal. Even if the Court were to accept the plaintiff’s argument that all breakfast foods, as possible substitutes for each other, are in one relevant market, certain “submarket criteria” suggest that the parties products are in separate relevant sub-markets. The use of certain submarket criteria, which the Supreme Court presented in Brown Shoe Co. v. United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962), is a supplement to the market test to determine if the parties’ goods are in the same relevant market. White and White, 723 F.2d at 500; see Hand v. Central Transp., Inc., 779 F.2d 8, 11 (6th Cir.1985); Borden, Inc. v. Federal Trade Comm’n, 674 F.2d 498, 510 (6th Cir.1982), vacated and remanded on other grounds, 461 U.S. 940, 103 S.Ct. 2115, 77 L.Ed.2d 1298 (1983). Goods which are in the same market but in different submarkets do not compete directly and are not in the same “relevant product market” for purposes of the antitrust laws. A submarket may be determined by examining such practical indicia as (1) “industry or public recognition of the submarket as a separate economic entity,” (2) “the product’s peculiar characteristics and uses,” (3) “unique production facilities,” (4) “distinct customers,” (5) “distinct prices,” (6) “sensitivity to price changes,” and (7) “specialized vendors.” Brown Shoe, 370 U.S. at 325, 82 S.Ct. at 1524, quoted with approval in White and White, 723 F.2d at 501. The first criterion, recognition of the sub-market as a separate entity, enjoys only incomplete illumination from the record here. The parties presented no evidence that the public recognizes a submarket for ready-to-eat cereals apart from the sub-market for microwaveable meat analog hot breakfast foods, although such recognition is likely. The Court does, however, have some evidence that the industry considers the markets or submarkets for the parties’ goods to be separate, specifically the conduct of the parties themselves. When the Court asked Worthington’s president what its direct competitors were, he responded that no company produces a directly competing analog product and that only Egg Beaters competes with its Scramblers egg substitute. Transcript at 1-29 to -30 (testimony of Dale Twomley). Although Worthington tracks the market reports concerning competitors, it concentrates its scrutiny on others’ frozen food products, not cereal, since it is most concerned about frozen food products as its, more or less, direct competition. Id. at I-108 to -09, 1-117 to -18 (testimony of Franklin Poston). Similarly, Kellogg seeks to compete with other producers of ready-to-eat cereals; such manufacturers are Kellogg's direct competition. Kellogg considers the cereal market or submarket to be distinct from that of other breakfast foods. It does not track the performance of Morningstar Farms products as its competition. Id. at II-29 to -32 (testimony of William Wein-traub). In short, both parties conduct their market analyses under the assumption that microwaveable meat analog hot foods are not in the same submarket, or even the same market, as ready-to-eat cereals. The Court finds that the parties are typical of companies in the food industry. Thus, their behavior should be typical of the industry in general as well. This conduct, then, provides some evidence that the industry recognizes the parties’ products as being in separate markets or submarkets which are distinct economic entities, the first submarket criterion. Another submarket criterion is the presence or absence of peculiar characteristics and uses of the parties’ products. Here, the plaintiff’s food has one particular characteristic. Specifically, it contains meat substitutes. In place of real meat, which is an integral part of many ordinary breakfasts, Worthington’s foods contain egg whites and soy products, which serve as analogs to meat. Worthington uses these ingredients to make foods which have the appearance of real eggs, sausage, bacon, and so on. Kellogg’s products, by contrast, are not substitutes for anything. They are themselves a staple in ordinary breakfasts. The record contains no evidence concerning unique production facilities, the third submarket criterion. The record does, however, indicate that the plaintiffs products appeal to “distinct customers,” the fourth submarket criterion. In specific, Worthington’s products appeal in large part to vegetarians. Although more and more Americans are becoming vegetarians, they are nonetheless a small, discrete minority of consumers. See supra text accompanying note 4. In sum, at this preliminary stage of the lawsuit, the court’s examination of the parties’ products suggest that they are in separate relevant markets. Their use or function is different and the plaintiff has not shown a cross-elasticity between them. Even if the parties’ goods were in the same broad market, the submarket criteria strongly suggest that they would be in separate submarkets. Thus, the Court concludes that Morningstar Farms products and Kellogg’s Heartwise cereal are not “directly competing” within the meaning of the Lanham Act or state trademark law. Confusion in a palming off case involves the mistaken belief of consumers that they are purchasing the plaintiff’s goods when they are, in fact, purchasing the defendant’s. For this type of confusion to take place, the items must be directly competing goods. Given the Court’s conclusion that Worthington’s and Kellogg’s foods do not compete directly, confusion of the kind seen in palming off cases is impossible. Although the lack of direct competition does not preclude other kinds of confusion, it does preclude liability under the palming off theory. Thus, the relatedness of the goods factor weighs decisively against a finding of consumer confusion under the palming off theory. 3. Similarity of the Marks The third factor which enters into the determination of whether a likelihood of confusion exists is the similarity of the parties’ competing marks. In deciding whether the marks are similar, the Court must refrain from side-by-side comparisons of the marks in question. Wynn Oil Co. v. Thomas, 839 F.2d 1183, 1187 (6th Cir.1988); WSM, Inc. v. Tennessee Sales Co., 709 F.2d 1084, 1087 (6th Cir.1983). A defendant can often point out minute differences which, upon intense scrutiny, would seem to distinguish the parties’ marks. Such differences, though, may not register in the minds of consumers who may be confused upon seeing the defendant’s mark. Moreover, the Court must not focus on certain “prominent” features that both parties’ marks have in common, to the exclusion of others which cause the parties’ marks as a whole to create in the minds of consumers quite different impressions. See Little Caesar Enters., Inc. v. Pizza Caesar, Inc., 834 F.2d 568, 571 (6th Cir.1987) (quoting 2 J. McCarthy, supra note 62, § 23:15, at 80). Thus, the Court must refrain from dissecting the conflicting marks and comparing their corresponding parts. “It is the impression which the mark as a whole creates on the average reasonably prudent buyer and not the parts thereof which is important.” Id. Nevertheless, certain parts of the mark may be “dominant” in their ability to influence the total impact of the mark on consumers, in comparison with more “peripheral” parts of the mark. 2 J. McCarthy, supra note 62, § 23:15, at 84. Thus, if the dominant segments of the competing marks are the same, consumer confusion concerning the marks as a whole may be likely in spite of differences in the “peripheral” parts of the marks. Id. Therefore, to determine whether the marks are similar, the Court must ascertain whether a person “having a general recollection” of the plaintiff’s mark would be likely, upon seeing the defendant’s mark, "to assume that both emanate from the same source or connected sources.” WSM, 709 F.2d at 1087; see Wynn, 839 F.2d at 1187 (court must determine if marks would be confusing if “singly presented”). When one mark is a composite consisting of both a design and a word and the other mark consists only of a word, the first step in the analysis is to determine whether the word or the design dominates the composite mark. 2 J. McCarthy, supra note 62, § 23:15, at 87. If the dominant part of the composite mark is the word, then the Court must compare the parties’ word marks aside from the design. If the words used are the same or confusingly similar then confusion may be likely even if “peripheral differences” divide the competing marks, id. at 84, such as the design associated only with the composite mark. Again, it is the mark as a whole which the Court must consider. Id. at 86. Here, the Court finds that the word segment of the Worthington’s mark is dominant. As between the heart-shaped design and the word “HEARTWISE,” it is the word segment which conveys the suggestion of healthiness which the plaintiff intends. The heart-shaped design merely augments the message conveyed by the word. Given that the word segment of the plaintiff’s mark is the dominant part, the Court must now compare the HEART-WISE name on the plaintiff’s design to the Heartwise mark used on Kellogg’s cereal. In gauging the similarity of the competing word marks, a “proper analysis ... includes examining the pronunciation, appearance, and verbal translation of conflicting marks.” Wynn, 839 F.2d at 1188 (citing 2 J. McCarthy, supra note 62, § 23:4). Of course, the Court must consider the marks “in light of what occurs in the marketplace.” Id. at 1187. One such factor to consider when assessing what happens in the marketplace is the trade dress context in which the marks appear. This factor is relevant when the similarity of marks is a close question. The total effect of the “background” impression produced by the “shape, color and design of packaging and containers” may either “intensify or dilute any confusion” between the parties’ marks. Worthington argues in this case that the parties’ marks are similar. It notes that the words "HEARTWISE” on the plaintiff’s products and the word “Heartwise” on the defendant’s cereal are identical in sight, spelling, and pronunciation. Despite the fact that the graphic images appearing around the words appearing on the parties products are not identical, the plaintiff contends that on both products, the word “HEARTWISE” appears at the center of a graphic with eye-catching properties. By contrast, Kellogg contends that obvious visual and conceptual differences distinguish the parties’ marks. It states, in specific, that the two marks perform distinct functions. Kellogg’s Heartwise mark is the name of its cereal. Worthington’s HEARTWISE, however, simply conveys product information concerning the healthiness of its food. On the face of it, an analysis of the two word marks used, HEARTWISE by the plaintiff and Heartwise for the defendant’s cereal, suggests that the marks are almost identical. First, the two marks are pronounced the same. Accordingly, the “sound” of the two marks is identical. As for the appearance, or “sight” of the marks, the Court must consider both the spelling of the marks and the style of lettering or typeface. The lettering style of trademarks is relevant because the use of another’s distinctive lettering style may engender confusion, even if the wording of the marks is slightly different. 2 J. McCarthy, supra note 62, § 23:15, at 92-93 (citing Coca-Cola Co. v. Gemini Rising, Inc., 346 F.Supp. 1183 (E.D.N.Y.1972)); see WSM, Inc. v. Tennessee Sales Co., 709 F.2d 1084, 1085-87 (6th Cir.1983) (liability imposed for copying “OPRYLAND” T-Shirt design and selling “MUSIC CITY” shirts, on which lettering styles were substantially similar). If the lettering styles of the competing marks are different, however, confusion is less likely, though such a difference does not insulate the defendant from liability. J. McCarthy, supra note 62, § 23:15, at 92. Here, the parties’ marks are similar in appearance, but not identical. They are identical in one way because they are spelled in exactly the same way. Nevertheless, the lettering of the marks is different. Specifically, the typefaces are quite dissimilar. Worthington’s HEARTWISE mark consists of all capital letters in one kind of typeface, while Kellogg’s Heart-wise mark has both upper and lower case letters in a distinct typeface. Compare Appendix A with Appendix B. Moreover, the lettering differs in size. The plaintiff’s lettering is tiny in comparison to Worthing-ton’s, due in large part to the different functions the parties’ marks serve. See supra text accompanying notes 18-20, 44 (size of marks); supra text accompanying note 64 (Worthington’s mark is a pseudo-certification mark while Kellogg’s is the name of the cereal itself). The final factor to consider when assessing the similarity of the parties’ word marks is their meaning. In this case, the meaning of Worthington’s HEARTWISE mark is the same as that of Kellogg’.s Heartwise mark, since they invoke the same idea of the product being good for the consumer’s heart. They allude to the fa