Full opinion text
MEMORANDUM OPINION, INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW RICHARD G. KOPF, United States Magistrate Judge. ConAgra, Inc. (ConAgra) sued Geo. A. Hormel & Company (Hormel), claiming that Hormel infringed ConAgra’s HEALTHY CHOICE trademark as applied to shelf-stable food products. ConAgra claimed Hormel infringed on ConAgra’s trademark by utilizing Hormel’s HEALTH SELECTIONS trademark as applied to shelf-stable food products. Hormel responded by filing counterclaims regarding ConAgra’s use of allegedly false and misleading advertisements. The parties consented to try this case before me in my capacity as a United States Magistrate Judge, and the Honorable William G. Cambridge, United States District Judge for the District of Nebraska, referred this case to me for trial. Pursuant to Federal Rule of Civil Procedure 52,1 now set forth the court’s findings of fact and conclusions of law in the form of this memorandum opinion. I find in favor of Hormel on ConAgra’s claim of trademark infringement, and I find in favor of Con-Agra on Hormel’s false advertising claims. I. A. Although phrased in a variety of ways, there are essentially two questions to be resolved by the court. Those questions are: 1. Does Hormel’s use of the mark HEALTH SELECTIONS for a line of shelf-stable products infringe ConAgra’s proprietary rights in and to the mark HEALTHY CHOICE under 15 U.S.C. §§ 1114(1) and 1125(a)? 2. Did ConAgra engage in false, misleading and/or deceptive advertising when advertising and promoting its HEALTHY CHOICE shelf-stable products, primarily in violation of 15 U.S.C. § 1125(a)? B. A pretrial conference was held in this matter on the 2nd day of August, 1991 (filing 48). The parties have agreed that the following may be accepted as established facts for purposes of this case only: JURISDICTION AND VENUE 1. This court has jurisdiction under 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338(a) and (b) and pendent jurisdiction. 2. Venue lies in this court pursuant to 28 U.S.C. § 1391(b) and (c). 3. On April 29, 1991, the parties in this action, through their counsel, waived the right to proceed before a judge of the United States District Court and consented to have the United States Magistrate Judge conduct any and all further proceedings in this case (including the trial) and order the entry of final judgment. PARTIES 4. Plaintiff, ConAgra, Inc. (“ConAgra”), is a corporation organized and existing under the laws of the State of Delaware. ConAgra maintains its principal place of business in Omaha, Nebraska. 5. ConAgra is a diversified food company. It operates its business through a number of independent operating companies, including ConAgra Frozen Food Company. 6. Defendant, Geo. A. Hormel & Company (“Hormel”), is a corporation organized and existing under the laws of the State of Delaware. Hormel maintains its principal place of business in Austin, Minnesota. 7. Hormel, like ConAgra, is a diversified food company. Hormel operates its business through six groups: The Prepared Foods Group (which includes the Grocery Products Division), the Meat Products Group, the Frozen Foods and International Group, the Foodservice Group, the Operating Group and the Administrative Group. 8. At all relevant times, Hormel has been a major player in the shelf-stable food business, engaged in manufacturing and selling a variety of food products including shelf-stable foods in interstate commerce. HEALTHY CHOICE 9. ConAgra adopted the mark HEALTHY CHOICE in 1988. The name was generated in an ideation session in the spring of 1988. 10. On or about May 3, 1988, ConAgra conducted a computerized trademark search for the mark HEALTHY CHOICE. 11. On or about June 22,1988, ConAgra shipped HEALTHY CHOICE chicken and pasta divan frozen dinners to each of the following locations: No Frills Supermarket 1817 West Broadway Council Bluffs, Iowa 51501 No Frills Supermarket 8005 Blondo Street Omaha, Nebraska 68134 12. On August 1, 1988, ConAgra filed an application to register the mark HEALTHY CHOICE in International Class 29 on the Principal Register of the United States Patent and Trademark Office. The goods description in that application read “frozen prepared dinners comprised of meat and vegetables and fruit; poultry and vegetables and fruit; seafood and vegetables and fruit.” Said mark was published for opposition on December 6, 1988. No opposition being made, Certificate of Registration No. 1,528,468 was issued on March 7, 1989, to ConAgra for the mark HEALTHY CHOICE. 13. In October of 1988, ConAgra began shipping HEALTHY CHOICE product to areas geographically representing approximately twenty-five percent (25%) of the United States. 14. In February of 1989, ConAgra became aware that Edwards Baking Company m Atlanta, Georgia, was seeking to register the mark HEALTHY CHOICE for bakery goods. ConAgra acquired Edwards Baking Company’s rights to the mark HEALTHY CHOICE and its application to register the mark in consideration for a Ten Thousand Dollar ($10,000) payment. The application acquired from Edwards Baking Company eventually resulted in the issuance of Certificate of Registration No. 1,552,156 now owned by ConAgra. 15. On or about June 13, 1989, Com-Source Independent Foodservice Companies, Inc., and North American Foodser-vice, Inc. (Collectively “ComSource”), as plaintiffs, sued ConAgra, Inc., in the United States District Court for the Northern District of Georgia (Atlanta, Georgia). 16. ComSource is a national food service organization which provides products and services to independent food service distributors throughout the United States. These distributors sell food products to institutional feeding establishments such as restaurants, hospitals and nursing homes. 17. ComSource took the position in the litigation that ConAgra’s adoption and use of its mark HEALTHY CHOICE for frozen dinners sold to retail grocery stores infringed ComSource’s trademark rights in the mark HEALTHCHOICE for nutritious food products sold through the food service industry. 18. ConAgra denied that it was infringing ComSource’s trademark rights and a trial on ComSource’s Motion for Preliminary Injunction was held in Atlanta in November of 1989. ConAgra filed Findings of Fact and Conclusions of Law in connection with that trial. 19. Prior to a decision in the litigation, the parties resolved their differences and entered into a settlement agreement. 20. Pursuant to the Settlement Agreement, ComSource conveyed to ConAgra all of its right, title and interest in and to the mark HEALTHCHOICE. 21. In addition to frozen dinners, Con-Agra has marketed the following food products under the mark HEALTHY CHOICE: Product Description Date Frozen Entrees 10/30/89 Shelf-Stable Products 10/15/90 Egg Substitute 11/26/90 Ice Cream 02/15/91 Breakfast Items 04/01/91 (approx.) 22.ConAgra has filed the following applications to register HEALTHY CHOICE on certain food products: Mark Serial No. HEALTHY CHOICE 74/041,263 HEALTHY CHOICE 74/066,713 HEALTHY CHOICE FOR KIDS 74/076,282 HEALTHY CHOICE 74/132,427 HEALTHY CHOICE & DESIGN 74/172,150 HEALTHY CHOICE & DESIGN 74/172,323 23. In November of 1990, ConAgra became aware that Campbell Soup Company (“Campbell”) had commenced using the mark HEALTHY REQUEST on soup. 24. On the 29th day of November, 1990, ConAgra sent a cease-and-desist letter to Campbell requesting that Campbell immediately cease using the mark HEALTHY REQUEST on soups. In that letter Con-Agra contended that HEALTHY REQUEST was “similar in appearance and identical in meaning to [ConAgra’s HEALTHY CHOICE trademark].” 25. On or about the 7th day of December, 1990, Campbell instituted a declaratory judgment action in the United States District Court for the District of New Jersey styled Campbell Soup Company v. ConAgra, Inc., Civil Action No. 90-4965 (SSB). 26. On or about the 12th day of March, 1991, the litigation between ConAgra and Campbell was settled by entry of a Consent Decree. 27. By June of 1987, ConAgra, as part of its “project AGNEW,” began the process of selecting a trademark for a proposed new line of frozen dinners intended to be low in calories, fat, sodium and cholesterol. 28. ConAgra conducted several trademark searches for proposed trademarks to be used on or in association with its healthy frozen dinners. These searches included a trademark search of HEART’S CHOICE on April 7, 1988, a search for HEALTHY CUISINE conducted on April 7, 1988, searches for HEALTHY CHOICE and HEARTLINE on May 3, 1988, and a search for marks which included “BETTER” in combination with “CHOICE” which was dated Spring of 1988. 29. ConAgra wanted a product name that communicated to the consumer the product concept of being “healthy” and good for the heart. In fact, other marks considered in the trademark selection process included “HEART’S CHOICE,” “GOOD FOR YOU” and “HEALTHY HEART.” 30. The “HEALTHY HEART” term was dropped from consideration after Con-Agra was told by the USDA [United States Department of Agriculture] that the use of that term would be disallowed because it implied the ConAgra dinners had health benefits. ConAgra selected the HEALTHY CHOICE name for its “healthy” frozen dinners in the Spring of 1988 and subsequent to the trademark searches referenced in paragraph 28, supra. 31. Since October of 1988, ConAgra’s HEALTHY CHOICE products have included fish or seafood dinners and entrees. 32. Following ConAgra’s marketplace introduction of its frozen HEALTHY CHOICE products, ConAgra filed another federal trademark application to register the HEALTHY CHOICE mark as applied to shelf-stable products. That application was filed in March of 1990 and was based on ConAgra’s intent-to-use [sic] the mark on shelf-stable goods. 33. At the time suit was filed, ConA-gra’s HEALTHY CHOICE shelf-stable products were being test-marketed in four markets — Denver, Des Moines, Omaha and Miami. HEALTH SELECTIONS 34.In March of 1989, Hormel sought to register the following three trademarks: HEALTH MENU NUTRITIOUS CUISINE HEALTH SELECTIONS 35. In March of 1989, Hormel was marketing a line of shelf-stable products in a tray container under its trademark TOP SHELF. 36. In connection with Hormel’s effort to register the three trademarks described in Paragraph 34, supra, above, Hormel had black-and-white labels depicting each of the three marks printed and applied to shelf-stable products, i.e., Lemon Fillet of Cod and Linguini with Clam Sauce, that were at that time being marketed under the TOP SHELF trademark. 37. In May and June of 1989, Hormel shipped in interstate commerce cases of Lemon Fillet of Cod and cases of Linguini with Clam Sauce under each of the three marks set forth in Paragraph 34, supra. 38. On the 27th day of June, 1989, Hormel filed applications to register each of the three marks described in Paragraph 34, supra, for “main dish entrees with seafood or fish as the primary ingredient.” 39. On March 6, 1990, the U.S. Patent and Trademark Office issued Certificates of Registration for the following marks: Mark Registration No. HEALTH MENU 1,585,934 HEALTH SELECTIONS 1,585,935 40. Since prior to ConAgra’s introduction of its HEALTHY CHOICE frozen products (Fall, 1988), Hormel has manufactured and sold microwaveable shelf-stable products. Other shelf-stable microwaveable products on the market include Chef Boyardee, Lunch Bucket and Light Balance (Doubletree/Dial), Kraft, Healthy Recipes and, most recently, Healthy Choice (Con-Agra). 41. During the PTO [Patent and Trademark Office] prosecution of the HEALTH SELECTIONS trademark application, the examining attorney did not cite ConAgra’s registered HEALTHY CHOICE mark. Accordingly, on December 12, 1989, the HEALTH SELECTIONS mark was published for opposition by anyone believing it would be damaged by the registration of the mark on the Principal Register. 42. A representative(s) of ConAgra requested a search report for the mark HEALTHY START and a Thomson & Thomson full search report on that mark was received and reviewed by representative(s) of ConAgra, Inc., on or shortly after March 7, 1990, the date of the search report. One of the entries in that search report was the pending federal trademark application owned by Geo. A. Hormel & Company for the mark HEALTH SELECTIONS for main dish entrees with seafood or fish as the primary ingredient dated June 27, 1989, stating a date of first use in interstate commerce of May 3, 1989, and which showed that the application was published for opposition on December 12, 1989. 43. Since on or before December 12, 1989, and continuing to the present date, the law firm of McGrath, North, Mullin & Kratz subscribed to and received the Official Gazette of the United States Patent and Trademark Office. This publication lists federal trademark applications that are published for opposition and federal trademark registrations that issue, among others. During the same time period, McGrath, North, Mullin & Kratz represented ConAgra, Inc., with respect to certain trademark matters including but not limited to the trademark HEALTHY CHOICE. 44. No opposition to the initial registration of the HEALTH SELECTIONS mark was lodged by ConAgra, or anyone else, and on March 3,1990, United States Trademark Registration No. 1,585,935 on the Principal Register issued to Hormel for that mark. 45. Product development of a line of products ultimately marketed under the HEALTH SELECTIONS brand name in a microwaveable cup container began in earnest in June of 1990. Some development work on that product line began earlier. 46. Label development work on the HEALTH SELECTIONS cup products began in September of 1990. 47. Hormel’s HEALTH SELECTIONS product has been sold in test markets since February, 1991, which test markets are Des Moines, Omaha, Denver, Phoenix and Dallas. II. I turn first to the issue of whether or not Hormel has infringed ConAgra’s HEALTHY CHOICE mark. The “ultimate issue on the infringement claim [is] whether the recent mark [HEALTH SELECTIONS] so resembled the registered mark [HEALTHY CHOICE] that its use was ‘likely to cause confusion, or to cause mistake, or to deceive.' ” SquirtCo v. Seven-Up Co., 628 F.2d 1086, 1090-91 (8th Cir. 1980) (citing 15 U.S.C. §§ 1114(1) and 1127). Both parties agree that when assessing “likelihood of confusion,” a district court should consider the following six factors: a. The strength of the trademark; b. The similarity between the trademark and the defendant's mark; c. The competitive proximity of the product on which the respective marks are placed; d. The intent of the alleged infringer to pass off its goods as those of the trademark holder; e. The incidence of actual confusion; and f. The degree of care likely to be exercised by potential customers of the trademark holder. Id. at 1091. Accordingly, it is appropriate to analyze the evidence. Based on the analytical factors outlined in SquirtCo, I shall proceed to do so. A. THE STRENGTH OF THE MARK As Professor McCarthy has stated: “All trademarks are not equal.” 1 J. McCarthy, Trademarks and Unfair Competition § 11:24, at 503. Marks which are “strong” are given protection over a wide variety of related products and services and variations on visual and aural format, and relatively “weak” marks are given more narrow protection, both as to products and format variations. Id. The “rationale is that the more distinctive, unique and well known the mark, the deeper is the impression it creates upon the public’s consciousness and the greater the scope of protection to which it is entitled.” Id. at 504 (footnote omitted). As Professor McCarthy suggests, it is “absurd” to separate marks into two neat categories of either strong or weak. Id. Rather, the question is whether the senior user’s mark is sufficiently distinctive that a junior user’s mark will create customer confusion when used in a different format and appearance, or when used on a different line of goods, or when used in a different territorial area. Id. Thus, the “more customers know and recognize the senior user's mark, the more likely that they will be confused by a junior use.” Id. But even a “weak” mark is entitled to protection against subsequent registration or use by another for a closely similar format on closely competitive goods or services. Id. at 505 (footnote omitted). Thus, whether a mark is “weak” or not is of little importance if the junior mark is identical and the goods are closely related. Id. at 505-06 (footnote omitted). When assessing the strength of a mark, two factors are normally weighed: (a) the placement of the mark on the spectrum of marks, and (b) the marketplace recognition value of the mark. Id. at 509. This test distinguishes, on a time scale, two separate dimensions of strength. The first inquiry focuses on the inherent potential of the term at the time of its first use. The second evaluates the actual customer recognition value of the mark, in this case at the time the mark is asserted in litigation to prevent another’s use. (1) The courts have historically looked at the strength of trademarks by endeavoring to place them on a spectrum. Thus, in ascending order, which roughly reflects their eligibility for trademark status, and the degree of protection afforded the marks, the categories are: (a) generic terms which are never entitled to trademark protection; (b) descriptive trademarks, which are not inherently distinctive, but because they have acquired secondary meaning may be entitled to trademark protection; (c) suggestive trademarks, where no secondary meaning is required, and which are considered inherently distinctive, and (d) arbitrary or fanciful trademarks which are considered inherently distinctive and for which no secondary meaning is required. General Mills, 824 F.2d at 625; 1 J. McCarthy, Trademarks and Unfair Competition § 11:1, at 433. ConAgra contends that its mark is “suggestive,” but not “arbitrary” or “fanciful.” Plaintiff’s post-trial brief at 9 (“the HEALTHY CHOICE mark is suggestive and is entitled to broad protection.”). On the other hand, Hormel argues that the mark HEALTHY CHOICE is merely descriptive. The terms “descriptive” and “suggestive” are not mutually exclusive. 1 J. McCarthy, Trademarks and Unfair Competition § 11:20, at 490. The borderline is not clear, its location in any given situation “is hazy and only subjectivély definable,” and the descriptive category “imperceptibly shades over at its fringe into the suggestive domain.” Id. § 11:21, at 491 (footnotes omitted). It is therefore helpful to understand why descriptive marks do not warrant trademark protection in the absence of proof of secondary meaning. It is generally agreed that the descriptive term informs the buyer of the purported quality of the product, and since many other products may have similar qualities, the use of the term will not help the consumer distinguish between products of different sellers. Id. § 11:5, at 444 (footnote omitted). Moreover, descriptive terms are thought to belong to the public and therefore for policy reasons it is thought that one competitor should not be permitted to limit the language of commerce by preventing other competitors from fairly describing their own goods. Id. at 444-45 (footnotes omitted). There are a variety of tests which have been employed in an effort to distinguish a descriptive mark from a suggestive mark. Id. § 11:21. The one most frequently employed by the courts, and this circuit, is the so-called “imagination” test. Id. at 491-92. As the court stated in General Mills, suggestive marks are those “marks, requiring imagination to reach a conclusion as to the product’s nature.” 824 F.2d at 625. When this test is employed: “If the mental leap between the word and the product’s attributes is not almost instantaneous, this strongly indicates suggestiveness, not direct descriptiveness.” 1 J. McCarthy, Trademarks and Unfair Competition § 11:21, at 492. In this connection Professor McCarthy notes that marks which are laudatory are considered as a condensed form of describing the character or quality of the goods, and are thus regarded as “descriptive:” Marks which are merely “laudatory” and descriptive of the alleged merit of a product are also regarded as being “descriptive.” This includes such marks as GOLD MEDAL, BLUE RIBBON, and the like. Since each tangible product carries with it a “psychic load” of intangible consumer psychological expectations about the product, a mark could be “descriptive” of the product itself or those intangible expectations, or both. Self-laudatory or “puffing” marks are regarded as a condensed form of describing the character or quality of the goods. Id. § 11:5, at 443 (footnotes omitted). In this case, I conclude that the “mental leap” between the words and the product’s attribute “is almost instantaneous.” The mark HEALTHY CHOICE, when associated with foods, while not directly descriptive of a food product, does immediately provide a message of “the healthy characteristics of the good simply from looking at the mark.” Worthington Foods, Inc., v. Kellogg Co., 732 F.Supp. 1417, 1435 (S.D.Ohio 1990) (holding that the mark HEARTWISE applied to food did not permit the consumer to “directly cull a message concerning the healthy characteristics of the good simply from looking at the mark”) (emphasis added). In Worthington Foods the court reasoned that while the mark HEARTWISE might convey the message “wise for the heart,” consumers must understand the relationship between the low fat, low cholesterol nature of food and the connection between cholesterol and heart disease before fully understanding the message that the product with which the mark was associated had “healthy characteristics.” Id. In this case, even the minimal reasoning process described in the Worthington Foods case is not necessary to reach the conclusion that the goods to which the mark is associated are “good for you.” ConAgra seems to believe that since the mark HEALTHY CHOICE does not immediately bring to mind a food product that the mark is therefore suggestive. It is true that the mark HEALTHY CHOICE does not directly suggest the product with which the mark is associated, but the suggestive/descriptive dichotomy has not, as I have understood it, been limited in such a fashion. Rather, the question is whether the term “directly and clearly conveys information about the ingredients, qualities or characteristics of the product or service.” 1 J. McCarthy, Trademarks and Unfair Competition § 11:21, at 491 (emphasis added). In this connection, I was particularly impressed by how ConAgra chose to publicize its HEALTHY CHOICE mark. ConAgra’s television commercials (defendant’s exhibit 531) feature celebrities discussing ConA-gra’s HEALTHY CHOICE frozen entrees in terms of their low fat, sodium and cholesterol contents. These commercials end with a celebrity asking the consumer to “make a healthy choice” or “make the healthy choice.” I believe it particularly “relevant that the proponent of trademark status itself used the term in a descriptive sense.” Id. at 494 (footnote omitted). My finding is supported by both of the linguistic experts called to testify by the parties. Both classified the HEALTHY CHOICE mark as “laudatory.” (filing 95, TR 591:16-22; filing 98, TR 969:5-10). In this connection, Dr. Shuy, Hormel’s linguistics expert, testified that he did a computer search of publications to determine the common usage of the term “healthy choice” (filing 98, TR 933:11-25; 934:1-7). This search revealed in excess of 30 articles (defendant’s exhibits 522 and 523) using “healthy choice” which were “used primarily in the context of Healthy [sic] foods” (filing 98, TR 936:1-2). Shuy reviewed various commercial brochures and advertising materials, including one put out by the Washington Apple Commission on a program called “Healthy Choices” (filing 98, TR 938:19-24). This document (defendant’s exhibit 527) provides a fold-out wall chart for schoolchildren counseling them to “Make a Healthy Choice.” (filing 98, TR 939:16-25; 940:1-15). The Washington State apple growers’ “Healthy Choices for Kids” program was written up in a Washington Post article, dated June 14, 1991, which indicated that about 3 million schoolchildren throughout the country received this free educational kit (defendant’s exhibit 522). Still further, Mr. Golderman, a ConAgra executive responsible for developing new products under the HEALTHY CHOICE brand, testified that he had been aware for about two years of a nutritional program of General Foods that utilized the slogan or phrase “Make a Healthy Choice” (filing 94, TR 470:18-25; 471:1-3). This slogan appears to be a registered trademark of General Foods (defendant’s exhibit 521 at 55, U.S. Registration No. 1,528,219). This evidence of how the public is likely to perceive the mark HEALTHY CHOICE is customarily received in trademark cases. Best Buy Warehouse v. Best Buy Co., Inc., 751 F.Supp. 824, 826 (W.D.Mo.1989) (third party advertisements probative of the descriptive nature of “Best Buy”), aff'd, 920 F.2d 536 (8th Cir.1990). In further support of its claim that HEALTHY CHOICE was laudatory and descriptive as opposed to suggestive, Hormel introduced a collection of 78 third party trademark registrations (defendant’s exhibits 520 and 521). Defendant’s exhibit 520 is a collection of 21 “health” and “healthy” marks. Defendant’s exhibit 521 is primarily a collection of 57 “choice” marks, some of which also include the “health” formative. I have discounted, in terms of evidentia-ry significance, much of this evidence of third party trademark registration because Hormel did not provide significant accompanying proof of the extent and length of the actual use of these other registrations. 1 J. McCarthy, Trademarks and Unfair Competition § 11:26, at 514-16. Moreover, since much of the third party registration evidence provided by Hormel regards third party usage of marks on wholly unrelated products, the probative value of much of Hormel’s evidence of third party registration is quite small. Id. at 514 (footnote omitted). However, these registrations do have some evidentiary significance in showing how various terms, words, prefixes or suffixes of a mark are used in ordinary parlance. Id. at 516. In this sense, they are very much like the printed materials appearing in the public press described above. For example, consider the case of Nestle Foods Cory. v. Kellogg Co., 6 U.S.P.Q.2d 1145 (T.T.A.B.1988), where the patent and trademark trial and appeal board was confronted with litigation over TASTER’S CHOICE as applied to coffee and DINER’S CHOICE for tea, and the board considered such other third party marks as BREWER’S CHOICE for coffee and KING’S OWN CHOICE for tea. The board said: While opposer is perfectly correct that this record does not establish widespread use of other marks in incorporating the word “CHOICE” applied to food products, the certificates of registration introduced by applicant are relevant evidence, when taken together with the dictionary evidence, to the extent that they tend to prove that the word “CHOICE,” as a component of a mark applied to food products, is not wholly arbitrary but, rather, has a somewhat laudatory significance as applied to the respective food products of these parties. See Tektro- nix, Inc. v. Daktronics, Inc., 748 F.2d 675, 189 U.S.P.Q. 693 (C.C.P.A.1976). Id. at 1149. Also, in one instance there was significant evidence of a third party’s usage of a similar mark on similar goods other than on a Hormel or ConAgra product. The HEALTHY RECIPES product, by Sandoz Nutrition Corporation, for shelf-stable microwaveable meals, bearing Registration No. 1,489,764, registered May 24, 1988, (defendant’s exhibit 520, at 1) is competitive with ConAgra’s HEALTHY CHOICE shelf-stable microwaveable product and Hormel’s HEALTH SELECTIONS shelf-stable microwaveable product. A specimen of this product appears as defendant’s exhibit 552. Photographs show that the HEALTHY RECIPES product was available in Miami, Florida (defendant’s exhibits 619 and 620). Mr. Bunge, a Hormel consumer survey expert, testified that he personally observed the HEALTHY RECIPES product in numerous stores in Chicago, Illinois (filing 96, TR 748:22-25; 749:1-4). ConAgra responds to the evidence of the HEALTHY RECIPES registration by suggesting that Hormel. seeks to “dissect” ConAgra’s trademark. In other words, ConAgra does not believe the mark HEALTHY RECIPES is sufficiently similar to ConAgra’s mark for comparative purposes. ConAgra was aware of the HEALTHY RECIPES registration. It had concluded that despite the fact that the package on the HEALTHY RECIPES product used a good bit of green, like ConAgra, and the word “Healthy” was used in the mark, the HEALTHY RECIPES mark was not confusingly similar. This was true according to a ConAgra executive because ConAgra did not have the right to exclusive use of the word “Healthy” and the word “Recipes” was not synonymous with the word “Choice” (filing 85, Hughes deposition, TR 89:2-25; 90:1-24). I agree with ConAgra that “dissection” of a mark based upon minute similarities or dissimilarities is inappropriate as suggested in the case cited by ConAgra, Grandpa Pidgeon’s of Missouri v. Borgsmiller, 477 F.2d 586, 587 (C.C.P.A.1973) (holding that it was inappropriate to dissect two figures of a “Grandpa” on the basis that one was slightly stooped and the other apparently spry). However, I do not believe Hormel suggests the kind of minute scrutiny that ConAgra and the Grandpa Pidgeon’s of Missouri court criticize. In this case, Hormel’s effort to analyze “health,” or for that matter “choice,” is essentially an analysis of major constituents of ConAgra’s mark, not some relatively insignificant part of the mark. I think a competitor’s use of a registered trademark employing the word “Healthy” on competing goods is indicative of the laudatory nature of marks such as those at issue in this lawsuit. Compare Nestle Foods Corp. v. Kellogg Co., 6 U.S.P.Q.2d at 1149 (the word “Choice” was laudatory when applied to the food products of the parties in suit). I therefore find that the third party registration of HEALTHY RECIPES is of more relevance than the other third party registrations proffered by Hormel, that consideration of the HEALTHY RECIPES registration (or for that matter other third party registrations) does not constitute improper dissection of ConAgra’s mark, and that the HEALTHY RECIPES registration, and to a much lesser extent the other third party registrations, strongly suggest that the formatives “Healthy” or “Choice” have “a somewhat laudatory significance as applied to the respective food products of these parties.” Nestle Foods Corp., 6 U.S.P.Q.2d at 1149. Finally, Hormel argues that ConAgra has made a judicial admission that ConAgra’s mark is weak. In Comsource Independent Foodservice Companies, Inc., et al. v. ConAgra, Inc., No. 1:89-CV-1248 (N.D.Ga), ConAgra was accused of infringing Comsource’s trademark HEALTH-CHOICE. (Defendant’s exhibit 549). In that litigation, ConAgra filed Proposed Findings of Fact and Conclusions of Law wherein it strenuously argued that the HEALTHCHOICE mark was a laudatory mark and therefore descriptive and inherently weak, stating: The HEALTHCHOICE name is intended to convey a meaning of healthy products which represent a good choice for consumers. The HEALTHCHOICE name thus describes one of the attributes of its products. (Defendant’s (sealed) exhibit 535 — ConA-gra’s Proposed Findings of Fact at p. 4, It 15). Characterizing the HEALTHCHOICE mark as laudatory, ConAgra asserted that: A laudatory mark (such as HEALTH-CHOICE) is an inherently weak mark and, accordingly, Plaintiffs’ rights in the mark must be narrowly construed. (Citations omitted). (Defendant’s (sealed) exhibit 535 — ConA-gra’s Proposed Conclusions of Law at p. 23, II15). ConAgra strenuously argued the weakness of HEALTHCHOICE: Plaintiffs’ mark HEALTHCHOICE is an inherently weak mark and, accordingly, is entitled to limited protection. Plaintiffs’ mark can be described as “laudatory.” As a noted trademark authority indicated: Marks which are merely ‘laudatory’ and descriptive of the alleged merit of a product are also regarded as being ‘descriptive.’ This includes such marks as GOLD MEDAL, BLUE RIBBON and the like ... Selflaudatory [sic] or ‘puffing’ marks are regarded as a condensed form of describing the character or quality of the goods. See 1 J. McCarthy, Trademarks and Unfair Competition, § 11:5, at 443 (2d Ed. 1984). Because the mark HEALTH-CHOICE is descriptive, it is considered weak and is entitled to limited protection. (Defendant’s (sealed) exhibit 535 — ConA-gra’s Proposed Ultimate Findings of Fact and Conclusions of Law at p. 37, 1144), ConAgra’s defense in the Comsource litigation was based, in part, upon numerous third party trademark applications and registrations for marks including the “health,” “healthy” and/or “choice” formatives. ConAgra admitted that both the HEALTH-CHOICE mark and its own HEALTHY CHOICE mark were entitled to only narrow rights. ConAgra argued: Not only is Plaintiffs’ mark inherently weak as noted above, the numerous third-party uses of the terms “HEALTH,” “HEALTHY” and “CHOICE” further narrow each of the parties’ rights with respect to their respective marks, (emphasis added) (Citations omitted). (Defendant’s (sealed) exhibit 535 — Con-Agra’s Proposed Ultimate Findings of Fact and Conclusions of Law, at p. 38, 1147). ConAgra responds by suggesting that when it was sued by Comsource, ConAgra reasonably asserted that the Comsource mark was entitled to only narrow protection because the mark had received little attention, nominal promotion, and it was being utilized essentially within the food service industry, such as hospitals and nursing homes. Plaintiff’s post-trial brief at 19-20. Accordingly, ConAgra argues that, since Comsource’s use preceded Con-Agra’s, ConAgra was forced to use the mark PROFESSIONAL CHOICE for the food service industry. Id. at 20. ConAgra then argues that it saw the value of the HEALTHCHOICE mark for all food products, retail and food service, and, accordingly, ConAgra purchased Comsource’s rights for % of a million dollars. ConAgra concludes by arguing the Comsource litigation establishes only that the mark HEALTHY CHOICE is a very valuable mark. The distinctions that ConAgra makes regarding the Comsource litigation do not make much of a difference. Obviously, ConAgra thought its mark was valuable, as ConAgra points out. But this does not, in and of itself, mean very much. Clearly, laudatory and descriptive marks may be valuable precisely because they preclude, if they are enforced, other competitors from using a common method of describing the subject product. Still further, while the fact that Comsource sought to market its products primarily within the food service industry is relevant, thus suggesting the context in which ConAgra might argue that “narrow” protection should be accorded the competing mark, this distinction does not explain ConAgra’s contention that the HEALTHCHOICE mark was “intended to convey a meaning of healthy products which represent a good choice for consumers” resulting in a “laudatory mark,” which is “inherently [a] weak mark” (emphasis added). It would appear that the mark is laudatory, and ConAgra so argued, whether in the context of the fairly narrow market such as food service, or in the broader market in which ConAgra and Hormel now joust. Stated differently, it seems to me that ConAgra admitted that its mark, and Comsource’s mark, are “puffing” marks, and marks which “puff” would appear to do so regardless of market definition. In summary, applying the first prong of the first SquirtCo test, I conclude that ConAgra’s mark is relatively weak because it is more laudatory and descriptive than it is suggestive. I come to this conclusion for the following reasons: (a) the laudatory and descriptive use of the HEALTHY CHOICE mark in ConAgra’s advertising; (b) the testimony of both of the expert linguists that HEALTHY CHOICE is a laudatory term; (c) the third party use and registrations indicating that the mark is laudatory and descriptive rather than suggestive, and (d) ConAgra’s admissions of the laudatory and descriptive nature of the HEALTHCHOICE mark made in the Com-source litigation. (2) The second prong of the “strength” test requires an examination of the marketplace recognition value of the mark. 1 J. McCarthy, Trademarks and Unfair Competition § 11:25, at 509-10. In this circumstance a mark can start off weak, but become strong in the marketplace, such as through substantial expenditure of the promoter’s resources for advertising. On the other hand, a mark may be quite distinctive in the abstract, but never realize potential in the marketplace. According to ConAgra it has invested in excess of 200 million dollars in the HEALTHY CHOICE brand name (plaintiff’s (sealed) exhibits 225-228). This includes about 194 million dollars in marketing, trade, and sales expenditures, and about 20 million dollars in plant, property and equipment. Since September of 1989, HEALTHY CHOICE products have been advertised on national television using various celebrities (defendant’s exhibit 531). Promotion of the HEALTHY CHOICE line to consumers has also included freestanding inserts in newspapers, which often provide coupons which allow consumers to purchase the product for a reduced price (plaintiff’s exhibits 163 and 248). ConAgra employs at its headquarters 22 to 25 full-time research and development personnel, 25 full-time marketing personnel, 35 full-time sales personnel, 2 full-time financial personnel, and 8 full-time market research personnel devoted to the development and marketing of the HEALTHY CHOICE line (filing 94, TR 407:22-25; 408:1-21). These numbers do not include people employed at the production plants (filing 94, TR 408:22-25). Gross sales of HEALTHY CHOICE food products for the fiscal year ending in May of 1988 totalled approximately 21 million dollars (plaintiff’s (sealed) exhibit 225), increasing to 202 million dollars in May of 1990 (plaintiff’s (sealed) exhibit 226), increasing to 352 million dollars in May of 1991 (plaintiff’s (sealed) exhibits 227 and 228), and projected at 500 million dollars for the fiscal year ending May of 1992 (plaintiff’s (sealed) exhibit 224). HEALTHY CHOICE products are currently being sold in about 26,000 to 28,000 retail outlets nationwide and about 23% of all the households in the country have tried HEALTHY CHOICE products, which, according to a ConAgra executive, is the highest level of household penetration that any prepared food product has achieved (filing 94, TR 404:22-25; 405:1-13). Advertising surveys indicate that 47% of a general sample of adults were aware of the brand name HEALTHY CHOICE (filing 94, TR 347:19-22). ConAgra has expended more than 50 million dollars on a national advertising campaign for HEALTHY CHOICE (filing 94, TR 348:1-4). ConAgra’s advertising efforts have resulted in its chief executive officer receiving the Marketing Man of the Year Award from Advertising Age, and the ConAgra executive in charge of the HEALTHY CHOICE brand was awarded Brand Manager of the Year Award from Food and Beverage Marketing (filing 94, TR 349:14-25). Hormel responds by suggesting that ConAgra is in effect “hiding the ball.” Hormel argues, and the pretrial conference order confirms, that the point of competition at issue in this case is “shelf-stable products” and not foods in general or refrigerated foods specifically (order on final pretrial conference, filing 48, at ¶ D “Controverted and Unresolved Issues”). Moreover, as Hormel points out, the entire focus of this case has been on the likelihood of confusion between ConAgra’s shelf-stable cup products and Hormel’s shelf-stable cup products. From this point, Hormel then argues, among other things, that it is appropriate to judge whether the HEALTHY CHOICE brand has been successful in the sense of brand awareness in the shelf-stable market, and not the general food market or the refrigerated market. Hormel asserts that if the inquiry is so properly limited, ConAgra has virtually no brand awareness in the shelf-stable market. In support of its argument, Hormel points out that the chief executive officer of ConAgra testified that the HEALTHY CHOICE success has been limited to frozen foods only (filing 92, TR 73:8-17). Hormel argues that ConAgra’s own documents show that, despite whatever success ConA-gra has achieved in the frozen food area, such success will not transfer over to the shelf-stable market because the shelf-stable market is comprised primarily of consumers who use canned food, not consumers who use frozen foods. For example, a ConAgra promotion plan labelled “AGNSS” for the period June 1, 1990, through September 30,1991, states in pertinent part that frozen food buyers will not be purchasers of shelf-stable products: The current user base of shelf stable products is comprised primarily of consumers of canned food. They are very price-value conscious and are also drawn to shelf stable for the convenience it offers. They are heavy users of coupons. Buyers of frozen food are not being drawn to this category in great numbers at this time. Heavy buyers of frozen food do not even walk down the canned food aisle in the grocery store so have little exposure to the category. Their need for convenience is being satisfied through their frozen food purchases. Also, they tend to be less price conscious than their canned food buying counterpart. An important characteristic of our target audience is that nutrition is not of major concern. Also, it has been determined that our target audience is driven by convenience and price-value. (Defendant’s (sealed) exhibit 569 at 3 and 6 (stamp #s 00026242 and 00026245)) (Emphasis in the original). In a similar marketing plan dated May 8, 1990, ConAgra recognized the same point that purchasers of frozen food would not be the shelf-stable purchasers and would not see or consider the shelf stable product: HEALTHY CHOICE frozen users (and frozen users in general) do not normally use canned foods, so they will not see/consider the product in the store. HEALTHY CHOICE frozen users are older than the shelf stable category user. ConAgra does not want to cannibalize sales of frozen. Consumers purchase S.S. based upon convenience, but convenience is not a point of difference for HEALTHY CHOICE. (Convenience will draw people to the category, but not specifically to HEALTHY CHOICE.) Consumers in the S.S. category are less concerned about their health and about the health aspect of canned food than are consumers in the frozen category. (Defendant’s (sealed) exhibit 571 at p. 3 (stamp #00028108)). At the time suit was filed, HEALTHY CHOICE shelf-stable products were being marketed only in four test markets — Denver, Colorado, Des Moines, Iowa, Omaha, Nebraska, and Miami, Florida. By comparing profit and loss statements of ConAgra it is fairly easy to see that ConAgra has expended relatively insignificant resources in terms of advertising in the shelf-stable category (compare plaintiff’s (sealed) exhibits 225, 226, and 227 dealing with HEALTHY CHOICE frozen foods, and plaintiff’s (sealed) exhibit 228 which deals with HEALTHY CHOICE shelf-stable food) (filing 94, TR 456:6-15). For example, advertising expenditures for HEALTHY CHOICE during fiscal year 1991 totaled approximately 44 million dollars (plaintiff’s (sealed) exhibit 227, run 7-09-91, total advertising), while advertising expenditures for the shelf-stable market during fiscal year 1991 totaled approximately $761,000 (plaintiff’s (sealed) exhibit 228, run 7-09-91, total advertising). When one endeavors to analyze the strength of the mark in the marketplace, one is endeavoring to assess “degree of reeognition in the minds of the relevant customer class.” 1 J. McCarthy, Trademarks and Unfair Competition § 11:1, at 434 (emphasis added) (footnote omitted). Thus, as Professor McCarthy indicates, “[m]any cases decide a trademark conflict for the junior user by saying that while plaintiff’s mark is strong in its own market, it is weak in defendant-junior user’s market.” Id. § 11:24 at 506 (footnote omitted). Even if one were to assume that ConA-gra’s mark was strong for frozen foods, it would be inappropriate, as a matter of fact, to assume that the mark is also strong in the shelf-stable part of the market. Since the evidence in this case suggests that shelf-stable product consumers are not likely to be the same consumers who purchase frozen food products, ConAgra’s reliance upon market penetration in the frozen food section of the supermarket, and related monetary expenditures, does not establish that its mark HEALTHY CHOICE is likewise “strong” in the shelf-stable area of the supermarket. While one might assume that there might be some “transfer of equity” of the mark HEALTHY CHOICE as applied to frozen foods to the mark HEALTHY CHOICE as applied to shelf-stable food products, such an assumption cannot be quantified in a meaningful sense. Therefore, such an assumption cannot serve as persuasive evidence of the strength of the HEALTHY CHOICE mark as applied to shelf-stable food products. In conclusion, (a) given the recent introduction of the HEALTHY CHOICE mark into the shelf-stable section of the grocery store, (b) given the fact that the mark HEALTHY CHOICE as applied to shelf-stable food products was only being test marketed at the time of this litigation, (c) given the fact that ConAgra’s marketing expenditures for the HEALTHY CHOICE mark in the shelf-stable market have been relatively insignificant, and (d) given the fact that purchasers of frozen foods are not likely to be purchasers of shelf stable products, I conclude that the mark HEALTHY CHOICE in the relevant market — the shelf-stable market — is not strong. B. SIMILARITY OF THE MARKS The second factor to be considered is the similarity of the marks. In this regard, “the use of identical, even dominant, words in common does not automatically mean that two marks are similar.” General Mills, 824 F.2d at 627 (OATMEAL RAISIN CRISP for breakfast cereal not confusingly similar to APPLE RAISIN CRISP for breakfast cereal). Rather, one must examine the “similarities of sight, sound, and meaning” to determine the “overall impression created by the marks.” Id. One does “not merely compare individual features.” Id. ConAgra concedes that this is not a “trade dress” lawsuit. Plaintiff’s post-trial brief at 5. However, ConAgra argues, and Hormel does not disagree, that when assessing the likelihood of confusion between two trademarks, similarity between the trademarks “must be assessed in terms of its effect upon prospective purchasers, and among the factors which could reasonably be expected to have an impact on, and be remembered by, potential consumers, the overall packaging concept is especially important.” Lever Bros. Co. v. American Bakeries Co., 693 F.2d 251, 257 (2d Cir.1982). Thus, as Professor McCarthy has stated, “the total effect of ‘background’ such as shape, color and design of packaging and containers will be compared to see if that background is likely to intensify or dilute any confusion between marks.” 2 J. Thomas McCarthy, Trademarks and Unfair Competition § 23:18, at 99 (2nd ed 1984) (citing, David Sherman Corp. v. Heublein, Inc., 340 F.2d 377 (8th Cir.1965)). In this connection I note that in an infringement action, “the defendant’s background trade dress may be sufficient to distinguish the goods even though, in the abstract, the marks might be said to be confusingly similar.” Id. at 101. And, very importantly, if “both plaintiff and defendant sell their products in a trade dress which is in the public domain and free for all to use ... plaintiff cannot use this similarity as a ground for likelihood of confusion.” Id. (footnote omitted). (1) I begin with a comparison of the two products as they would appear to the consumer — by sight. This comparison may be seen, by way of example, by comparing defendant’s exhibits 536 and 545, respectively a HEALTHY CHOICE “micro cup” and a HEALTH SELECTIONS micro cup. ConAgra’s microwaveable shelf-stable products display the HEALTHY CHOICE mark in white print on a dark green cup label and sometimes, where the sleeve product is used, on dark green cardboard oversleeves. There is some fairly significant yellow coloration used on the ConAgra label. The oversleeve product partially obscures the microwaveable cup from view when displayed on a grocery store shelf, but the cap of the cup is green and the cap can be partially observed. On the ConAgra product, the figure of a jogger is displayed between the word HEALTHY and the word CHOICE. ConAgra’s name is not used. ConAgra’s HEALTHY CHOICE mark is printed on its product labels with' the initials “H” “C” in a letter size larger than the lettering used in the remainder of the words. Hormel’s HEALTH SELECTIONS microwaveable cup has a predominantly white background color. Hormel does not use a figure or symbol. The Hormel “house” trademark using the word HORMEL is shown in logo form in red print framed in green and black border directly over and associated with the green-colored mark HEALTH SELECTIONS. The HEALTH SELECTIONS cup has a green cap and uses green as a background for the presentation of certain information, such as calories and fat. Hormel’s HEALTH SELECTIONS mark is printed and displayed in uniform size in relatively tall and narrow capital letters. I conclude that from the perspective of “sight” the trade dress is not confusingly similar, for among other reasons, the following: (a) the fairly prominent use of the HORMEL logo and name compared to Con-Agra’s use of the symbol of a jogger without ConAgra’s name; (b) the green background with fairly prominent yellow coloration on the ConAgra product compared with the white background with fairly prominent green coloration of the Hormel product; (c) the difference in type style (particularly ConAgra’s capitalization of “H” and “C”) and color for the marks “HEALTHY CHOICE” and “HEALTH SELECTIONS.” And, even if there are similarities, the similarities are in the use of the color green and the word “Health” or its derivatives. ConAgra has conceded that it has no proprietary right to the color green (filing 99, TR 1330:16-25; 1331:1-9). ConAgra has also conceded that it has no proprietary right to the word “Healthy” or its derivatives (defendant’s exhibit 540, at 113 “Consent Decree”); filing 85, Hughes deposition, TR 89:2-25; 90:1-24). This conclusion is buttressed by the recently concluded litigation involving ConAgra and Campbell Soup Co., Campbell Soup Co. v. ConAgra, Inc., No. 90-4965 (D.N.J.). In that matter, ConAgra alleged that the trademark HEALTHY REQUEST used by Campbell Soup Co. for health-oriented soup products was confusingly similar to the HEALTHY CHOICE mark. ConAgra specifically alleged that Campbell’s HEALTHY REQUEST mark was “similar in appearance and identical in meaning” to HEALTHY CHOICE (defendant’s exhibit 547). Notwithstanding this alleged similarity, ConAgra agreed to the entry of a consent decree which allowed Campbell to continue to market its product and use its mark, HEALTHY REQUEST, subject to certain conditions including (a) that the type style used for the HEALTHY REQUEST mark must be different than that used for HEALTHY CHOICE, (b) that Campbell not use a figure confusingly similar to the jogger on the HEALTHY CHOICE logo, (c) that Campbell not use the color green as the “predominant color” in the background of its labels, and (d) that Campbell would use the name “Campbell’s” in its promotional and advertising material (defendant’s exhibit 540, ¶ 1 “Consent Decree”). In my judgment, Hormel’s HEALTH SELECTIONS product satisfied the principle concerns expressed by ConA-gra in the consent decree involving Campbell Soup Co. (2) Both ConAgra and Hormel commissioned their linguistics experts to conduct a phonology or sound analysis of the respective marks HEALTHY CHOICE and HEALTH SELECTIONS. Dr. Geis, ConAgra’s expert, testified that “differences” in “sounds exist to signal differences in meaning.” (filing 96, TR 619:1-5). In fact, Geis believed that the fundamental proposition in linguistics was that differences in sounds exist to signal differences in meaning (filing 96, TR 619:1-5). Dr. Shuy, Hormel’s expert, also agreed that phonology is very important for understanding because “[it is] the noise you make that meaning is conveyed through.” (filing 98, TR 954:12-18). Dr. Geis acknowledged that there is a difference in sound between the mark HEALTHY CHOICE and HEALTH SELECTIONS, but he believed it appropriate to “place special weight on the initial segments” while not suggesting “that the ends are unimportant.” (filing 95, TR 564:15-20) Dr. Shuy came to just the opposite conclusion, finding that the mark HEALTH SELECTIONS has 13 sounds, 9 of which differ from the sounds found in the mark HEALTHY CHOICE (filing 98, TR 953:21-25; 954:1-5). If phonology is indeed as important as the linguists seem to suggest, I was more persuaded by Dr. Shuy’s straightforward testimony than I was by Dr. Geis’ somewhat rambling testimony. Moreover, from a “common sense” point of view, it seems to me that the mark HEALTH SELECTIONS sounds significantly different from the mark HEALTHY CHOICE. (3) According to Dr. Geis, ConAgra’s linguistics expert, the marks HEALTHY CHOICE and HEALTH SELECTIONS “have virtually identical meanings” (filing 95, TR 595:2-4). Indeed, even Dr. Shuy, Hormel’s expert, agreed that the words “choice” and “selection” are regarded in dictionaries as synonyms, that he is not aware of any dictionary that does not regard the words as synonyms, and that Roget’s International Thesaurus, a good source of synonyms according to Shuy, regards “selection” as a synonym for “choice” (filing 98, TR 997:8-25; 998:1-13). Dr. Shuy believed, however, that the word “choice” required an animated agent/subject (i.e., an actor) whereas “selections” does not, and the word “choice” refers to a limited array, whereas “selections” refers to a larger array (filing 98, TR 957:17-25; 958:1-25; 959:1-25; 960:1). But even Dr. Shuy, not intentionally, used the synonym “choices” when endeavoring to define the difference between “choice” and “selections”: That is the principle I’m getting at here is that the word “choice” has a more limited array of possibilities connected with it than does the word “selection” and even more so the word “selections” which indicates an even broader array of choices is available. An unfortunate use of word there (filing 98, TR 959:21-25; 960:1) (emphasis added). Since every single dictionary and thesaurus brought to my attention (plaintiff’s exhibits 251, 309 & 310) regard “selection” as a synonym for “choice”, notwithstanding the qualifications suggested by Dr. Shuy, I conclude that the mark HEALTH SELECTIONS means essentially the same thing as the mark HEALTHY CHOICE. C. COMPETITIVE PROXIMITY The products in this case compete with each other “head-on.” As noted by the Eighth Circuit Court of Appeals in Squirt-Co: Where the products are closely related, less similarity in the trademarks is necessary to support a finding of infringement. (citing David Sherman Corp. v. Heublein, Inc., 340 F.2d 377, 380 (8th Cir.1965)). Competitive proximity is one factor to be considered, even though infringement may be found in the absence of direct competition. H.M.H. Publish ing Co. v. Turbyfill, 330 F.Supp. 830 (M.D.Fla.1971). 628 F.2d at 1091. D. INTENT TO CONFUSE As the United States Court of Appeals for the Eighth Circuit stated in SquirtCo, “[ijntent on the part of the alleged infringer to pass off its goods as the product of another raises an inference of likelihood of confusion, but intent is not an element of a claim for trademark infringement.” Id. at 1091. In so stating, it must be recognized that the place of intent in this analysis is to determine whether there is likely consumer confusion, and the effort in determining the defendant’s state of mind is only an aid to the goal of determining consumer confusion, not an end unto itself. 2 J. McCarthy, Trademarks and Unfair Competition § 23:35, at 155. ConAgra alleges that the evidence supports a finding of intent on the part of Hormel to trade upon the good will that ConAgra had established in its HEALTHY CHOICE mark. ConAgra’s argument is essentially twofold. First, ConAgra argues that Hormel had made the decision to use the mark HEALTHY SINGLES on its line of shelf-stable microwaveable cup products, and that decision was reversed immediately after Hormel received word that ConAgra was introducing a line of shelf-stable products under the mark HEALTHY CHOICE. Second, ConAgra argues that there are a string of “coincidences,” which are in fact not coincidences, establishing that Hormel intended to unfairly use ConAgra’s good will in the HEALTHY CHOICE mark. I shall examine these contentions in turn. (1) ConAgra argues that Hormel decided to use its HEALTH SELECTIONS mark, instead of its HEALTHY SINGLES mark, after it learned that ConAgra was entering the shelf-stable market. This argument is predicated on the following facts. On September 18, 1990, Brent Payne, a Hormel product manager dealing with the HEALTH SELECTIONS product line, wrote Hormel’s advertising agency indicating that Mr. Bross, Payne’s boss, wanted to move forward quickly on Hormel’s HEALTHY SINGLES brand (plaintiff’s exhibit 116). On that same date Payne wrote Ms. Brennan, who was responsible for Hormel’s label design, and indicated that “upper management” wanted to move forward with the HEALTHY SINGLES product line, and he asked that Hormel’s advertising agency prepare a mockup of the labels for the HEALTHY SINGLES brand (plaintiff’s exhibit 117). On September 19, 1990, Hormel sent an “intent-to-use” application for HEALTHY SINGLES to the United States Patent and’ Trademark Office by overnight mail, for products matching the description of the HEALTH SELECTIONS product line (plaintiff’s exhibit 307). On September 20, 1990, Hormel’s district manager, Dale Heine, sent a telex to Rick Bross and Brent Payne stating, “As I notified you today, HEALTHY CHOICE has 8 items in the micro line and the same 8 items in a 15 oz. can ... we will try and get samples and send when possible.” (plaintiff’s exhibit 119). On September 20, 1990, Ms. Brennan corresponded with Mr. Payne, indicating that the brand name for the micro cup line would be “HEALTH SELECTIONS” (plaintiff’s exhibit 120). Hormel responds that the uncontroverted evidence establishes that Hormel chose HEALTH SELECTIONS as the brand name for the subject line, over HEALTHY SINGLES, before it learned of ConAgra’s introduction of its HEALTHY CHOICE shelf-stable product line. Hormel relies upon the following evidence. On September 19, 1990, Rick Bross, grocery products director of marketing, called a meeting with certain marketing managers and representatives of Hormel’s advertising agency (filing 66, Bross (sealed) deposition, TR 172:1-19). The purpose of the meeting was for Bross to make a final decision as to the name on the new shelf-stable product and he had reached the conclusion that he would recommend the name HEALTH SELECTIONS over the name HEALTHY SINGLES by the time of the meeting (filing 66, Bross (sealed) deposition, TR 172:7-15). Brent Payne, the product manager who reported to Bross, had thought up the name HEALTHY SINGLES for this product line, and he favored it and said so at the meeting (filing 75, Payne (sealed) deposition, TR 36:6-25; 37:1-3; 47:6-25; 48:1-25; 49:1-25; 50:1-23). According to Payne, “There were more in favor of HEALTH SELECTIONS than HEALTHY SINGLES” (filing 75, Payne (sealed) deposition,