*The Honorable James G. Carr, United States District Judge for theNorthern District of Ohio, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2003 FED App. 0241P (6th Cir.)File Name: 03a0241p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________KELLOGGCOMPANY,Plaintiff-Appellant,v.TOUCANGOLF,INC.,Defendant-Appellee.X---->,--NNo. 01-2394Appeal from the United States District Courtfor the Western District of Michigan at Kalamazoo.No. 99-00091—Wendell A. Miles, District Judge.Argued: May 6, 2003Decided and Filed: July 23, 2003Before: SUHRHEINRICH and COLE, Circuit Judges;CARR, District Judge.*_________________COUNSELARGUED:Daniel S. Mason, ZELLE, HOFMANN,VOELBEL, MASON & GETTE, San Francisco, California,2Kellogg Co. v. Toucan Golf, Inc.No. 01-2394for Appellant. Gerard Mantese, MANTESE &ASSOCIATES, Troy, Michigan, for Appellee.ON BRIEF:Daniel S. Mason, Christopher T. Micheletti, ZELLE,HOFMANN, VOELBEL, MASON & GETTE, SanFrancisco, California, for Appellant. Gerard Mantese,MANTESE & ASSOCIATES, Troy, Michigan, John J.Conway, Detroit, Michigan, for Appellee._________________OPINION_________________SUHRHEINRICH, Circuit Judge. Plaintiff-AppellantKellogg Company appeals from the district court’saffirmation of the Trademark Trial and Appeal Board’s(TTAB) decision to permit theregistration of the word mark“Toucan Gold” by Defendant-Appellee Toucan Golf, Inc.(TGI), a manufacturer of promotional golf equipment.Kellogg claims that TGI’s word mark and its correspondingtoucan logo create a likelihood of confusion with, and dilutethe distinctiveness of, Kellogg’s five federally-registered andincontestable “Toucan Sam” logos and word mark under theLanham Act as amended, 15 U.S.C. §§ 1051,et seq.We affirm the decision of the district court and denyKellogg’s claims. TGI’s use of the word mark “ToucanGold” does not create a likelihood of confusion amongconsumers, principally because TGI’s use of its mark is in anindustry far removed from that of Kellogg. Also, TGI’stoucan logo, as a realistic toucan design, does not create alikelihood of confusion with Kellogg’s more cartoonish“Toucan Sam” designs. Furthermore, Kellogg has notpresented any evidence that TGI’s use of its marks actuallydilutes the fame or distinctiveness of any of Kellogg’s marks.No. 01-2394Kellogg Co. v. Toucan Golf, Inc.31In 1964, the USPTO was known as the United States Patent Office.I. FactsKellogg, a Delaware corporation based in Battle Creek,Michigan, is the largest producer of breakfast cereal in theworld. On July 24, 1963, Kellogg first introduced ToucanSam on boxes of “Froot Loops” cereal. Kellogg has usedToucan Sam on Froot Loops boxes, and in every print andtelevision advertisement for the cereal, since. Toucan Sam isan anthropomorphic cartoon toucan. He is short and stoutand walks upright. He is nearly always smiling with apleasant and cheery demeanor, but looking nothing similar toa real toucan. He has a royal and powder blue body and anelongated and oversized striped beak, colored shades oforange, red, pink, and black. Hehas human features, such asfingers and toes, and only exhibits his wings while flying.Moreover, in television advertisements over the past fortyyears, Toucan Sam has been given a voice. He speaks witha British accent, allowing him to fervently sing the praises ofthe cereal he represents, and to entice several generations ofchildren to “follow his nose” because “it always knows”where to find the Froot Loops.Kellogg is the holder of five federally-registered ToucanSam marks at issue in this case.The first was registered onAugust 18, 1964, under United States Patent and TrademarkOffice1(USPTO) Reg. No. 775,496, and consists of asimplistic toucan design, drawn with an exaggerated, stripedbeak, standing in profile with hands on hips and smiling, asreproduced below:4Kellogg Co. v. Toucan Golf, Inc.No. 01-2394The second mark was registered March 20, 1984, underUSPTO Reg. No. 1,270,940, and consists of an updatedversion of the same toucan, standing and smiling with hismouth open widely; and pointing his left index fingerupward:The third mark is for the word mark, “Toucan Sam.” Thismark was registered on June 18, 1985, under USPTO Reg.No. 1,343,023. The fourth mark, registered on June 21, 1994,under USPTO Reg. No. 1,840,746, is a shaded drawing ofToucan Sam flying, with wings spread, and smiling.No. 01-2394Kellogg Co. v. Toucan Golf, Inc.5The fifth mark, registered January 31, 1995, under USPTOReg. No. 1,876,803, is essentially the same drawing as in thefourth mark, except unshaded, as reproduced below:Together the five registrations indicate that Kellogg’s marksare for use in the breakfast cereal industry, and on clothing.In 1994, Peter Boyko created TGI, an Ohio corporationwith its principal place of business in Mansfield, Ohio, withhis wife, Janice Boyko, and daughter. TGI is a manufacturerof golf equipment, mainly putter heads. TGI creates putterheads from polycarbonate plastics, purchases shafts and gripsfrom outside sources, and then assembles and sells theputters. Principally, TGI’s clientele consists of companieswho use TGI’s goods as promotional gifts at charity events.For this purpose, TGI prints thename or logo of its client onthe putter head or other piece ofequipment being sold. TGIrarely, if ever, sells directly to retailers or the public.6Kellogg Co. v. Toucan Golf, Inc.No. 01-2394TGI likewise uses a toucandrawing, known as “GolfBird”or “Lady GolfBird,” to represent its products. TGI has placedthis logo on letterhead, business cards, its web site, and evenon the outside of its building in Mansfield. GolfBird has amulti-colored body, and TGI displays GolfBird in a myriadof color schemes for different purposes. Invariably, however,she has a long, narrow, yellow beak with a black tip, notdisproportionate to or unlike thatof a real toucan. GolfBirdis always seen perched upon a golf iron as if it were a treebranch. She has no human features whatsoever, andresembles a real toucan in all aspects except, perhaps, hervariable body coloring:TGI has not registered its GolfBird logo with the USPTO.On December 15, 1994, however, TGI did file an “intent touse” application with the USPTO for the word mark “ToucanGold.” The application, as later amended, sought to use themark in relation to “golf clubs and golf putters.” Specifically,TGI planned to use the mark for its newest line of putterswhich consist of a putter head on a Boron Graphite shaft. OnAugust 29, 1995, the USPTO published TGI’s application foropposition. Kellogg filed an opposition with the TTAB,asserting that TGI’s proposed use of the mark “Toucan Gold”for golf-related merchandise infringed upon Kellogg’sToucan Sam marks under the Lanham Act by creating alikelihood of consumer confusion. On May 19, 1999, theTTAB dismissed the opposition without testimony.On July 16, 1999, Kellogg appealed the TTAB decision tothe district court below, and commenced ade novoreviewNo. 01-2394Kellogg Co. v. Toucan Golf, Inc.7under 15 U.S.C. § 1071(b). Inits complaint, Kellogg againclaimed that TGI’s use of the word mark “Toucan Gold”created a likelihood of confusion among consumers withrespect to Kellogg’s Toucan Sam word mark. Kellogg addeda likelihood of confusion claimwith respect to the GolfBirdlogo as well. Furthermore, Kellogg added a dilution claimunder the Federal Trademark Dilution Act of 1995 (FTDA).See15 U.S.C. §§ 1063 and 1125(c). On September 6, 2001,after a four day bench trial, the district court dismissedKellogg’s complaint. The judgment was then entered onSeptember 10. The court found that confusion was highlyunlikely, principally because Kellogg is in the business ofselling cereal, whereas TGI is in the business of sellingputters. Moreover, the court found no dilution because theparties’ marks are “visually and verbally distinct.” Kelloggfiled a notice of appeal on October 4, 2001, and this matter istimely before this Court pursuant to Fed. R. App. P.4(a)(1)(A).II. Standard of Review and JurisdictionThe TTAB “may refuse to register a trademark that soresembles a registered mark ‘as to be likely, when used on orin connection with the goods of the applicant, to causeconfusion, or to cause mistake, or to deceive.’”Recot, Inc. v.Becton, 214 F.3d 1322, 1326 (Fed. Cir. 2000) (quoting 15U.S.C. § 1052(d)).The federal courts have jurisdiction over appeals from theTTAB. A party who lost before the TTAB may appeal thedecision to the United States Court of Appeals for the FederalCircuit under a “substantial evidence” standard of review.See, e.g.,In re Thrifty, Inc., 274 F.3d 1349, 1350 (Fed. Cir.2001). Otherwise, a party may appeal the TTAB decision, tobe reviewedde novo, to the United States District Court inany district where venue is proper. 15 U.S.C. § 1071(b)(1).A disappointed party may present new evidence before thedistrict court that was not presented to the TTAB.Dickinson8Kellogg Co. v. Toucan Golf, Inc.No. 01-2394v. Zurko, 527 U.S. 150, 164 (1999). Kellogg has chosen thelatter route.We review the district court’s legal conclusionsde novo;but review its factual conclusions for clear error.SeeMcLaughlin v. Holt Pub. Schs. Bd. of Educ., 320 F.3d 663,669 (6th Cir. 2003).III. AnalysisEssentially, Kellogg seeks to block the registration of the“Toucan Gold” word mark, and to prevent furthercommercial use of both the word mark and the GolfBird logo.To this end, Kellogg asserts that there is a Lanham Actviolation because there existsa likelihood that consumers willbe confused as to the source of TGI’s products. Moreover,Kellogg asserts that, regardless of our confusion analysis,TGI’s use of its marks dilutes the fame of Kellogg’s marks,and therefore TGI is in violation of the FTDA.A. Likelihood of ConfusionIn order to show trademark infringement under the LanhamAct, and that TGI is not entitled to registration, Kellogg mustshow that TGI’s use of its marks constitutes use “incommerce” of a “reproduction, counterfeit, copy, or colorableimitation of a registered mark in connection with the sale,offering for sale, distribution,or advertising of any goods orservices on or in connection with which such use is likely tocause confusion, or to cause mistake, or to deceive . . . .” 15U.S.C. § 1114(1);see also Taubman Co. v. Webfeats, 319F.3d 770, 774 (6th Cir. 2003).This Court has established an eight-part test fordetermining when a likelihoodof confusion exists betweenthe origins of two products.Therma-Scan, Inc. v.Thermoscan, Inc., 295 F.3d 623, 629-30 (6th Cir. 2002);Daddy’s Junky Music Store, Inc. v. Big Daddy’s FamilyMusic Center, 109 F.3d 275, 280 (6th Cir. 1997);Frisch’sRestaurants, Inc. v. Elby’s Big Boy, Inc., 670 F.2d 642, 648No. 01-2394Kellogg Co. v. Toucan Golf, Inc.9(6th Cir. 1982). The factors are: (1) the strength of theplaintiff’s mark; (2) the relatedness of the goods or servicesoffered by the parties; (3) similarity of the marks; (4) anyevidence of actual confusion; (5) the marketing channels usedby the parties; (6) the probable degree of purchaser care andsophistication; (7) the defendant’s intent; and (8) thelikelihood of either party expanding its product line using themarks.Therma-Scan, 295 F.3d at 630;Daddy’s Junky MusicStores, 109 F.3d at 280;Frisch’s Restaurants, 670 F.2d at648. Not all of these factors will be relevantin every case,and “[t]he ultimate question remains whether relevantconsumers are likely to believe that the products or servicesoffered by the parties are affiliated in some way.”Homeowners Group, Inc. v. Home Mktg. Specialists, Inc., 931F.2d 1100, 1107 (6th Cir. 1991). Thus, the question here, asin all trademark cases, is whether we believe consumers ofTGI’s golf equipment are likely to think it was manufacturedby Kellogg.See, e.g.,Taubman Co., 319 F.3d at 776 (statingthat the only relevant question is whether there is confusionas to the origin of the respective products) (citingDaddy’sJunky Music Stores, 109 F.3d at 280). Noneof the factors isdispositive, but the factors guide us in our ultimatedetermination.See Landham v. Lewis Galoob Toys, Inc., 227F.3d 619, 627 (6th Cir. 2000).1. Strength of Kellogg’s MarksThe first factor of the testfocuses on the distinctiveness ofa mark and the public’s ability to recognize it.See ThermaScan, 295 F.3d at 631. InDaddy’s Junky Music Stores, werecognized a spectrum of distinctiveness for trademarks,ranging from “generic” to “fanciful.”Daddy’s Junky MusicStores, 109 F.3d at 280-81. For example, the word “cereal”is generic, whereas the names “Xerox” and “Kodak” arefanciful, having been completely fabricated by the trademarkholders.See Eastman Kodak Co. v. Weil, 137 Misc. 506, 243N.Y.S. 319 (1930);see also Armstrong Cork Co. v. WorldCarpets, Inc., 597 F.2d 496, 505 (5th Cir. 1979);ArrowDistilleries, Inc. v. Globe Brewing Co., 117 F.2d 347, 34910Kellogg Co. v. Toucan Golf, Inc.No. 01-2394(4th Cir. 1941) (giving as other examples of fanciful marks“Aunt Jemima” and “Rolls Royce”);cf. Aunt Jemima MillsCo. v. Rigney & Co., 247 F. 407, 409 (2d Cir. 1917).We find the “Toucan Sam” wordmark and logo each to befanciful. Kellogg completely created the name “ToucanSam.” Kellogg also completely fabricated Toucan Sam’slogo design. He does not resemble a real toucan. His uniqueshape, coloring, size, and demeanor are entirely the creationof Kellogg, and not reminiscent of anything seen in the wild.Therefore, as a logo, he is also a fanciful mark anddistinctive.In further support of the strength of its Toucan Sam marks,Kellogg has submitted survey information indicating that94% of Americans recognize Toucan Sam, and 81% ofchildren who recognize him correspond him with FrootLoops. Moreover, Kellogg has submitted extensive recordsdetailing the massive amount of time, money, and effortexpended in regard to the marketing of Toucan Sam andFroot Loops. We need not delve into Kellogg’s records; wefind the fact that Kellogg is the largest cereal maker in theworld, that Froot Loops is one of its best selling cereals, andthat Toucan Sam has appeared in every print and televisionadvertisement for Froot Loops since 1963 enough to establishthat Toucan Sam is visually recognizable by anoverwhelming cross-section of American consumers.Coupling that with his distinctiveness, Toucan Sam is a verystrong mark.2. Relatedness of the ProductsIn consideration of the secondfactor, we must examine therelatedness of the goods and services offered by each party.We have established three benchmarks regarding therelatedness of parties’ goods and services. First, if the partiescompete directly, confusion is likely if the marks aresufficiently similar; second, if the goods and services aresomewhat related, but not competitive, then the likelihood ofNo. 01-2394Kellogg Co. v. Toucan Golf, Inc.11confusion will turn on other factors; finally, if the productsare unrelated, confusion is highly unlikely.Therma-Scan,295 F.3d at 632;Daddy’s Junky Music Stores, 109 F.3d at282.TGI makes golf equipment, mainly putter heads. TGI alsosells bag tags, divot tools, andfull sets of clubs, but has neversold any merchandise unrelated to golf.Kellogg is primarily a producer of breakfast cereal, but hasbranched off from cereal and sold products in other industrieson a limited basis. It has also at times licensed its name andcharacters to outside companies. Kellogg asserts before thisCourt that it has sufficiently entered the golf equipmentindustry. In support of this claim, Kellogg presents a catalog,wherein it offers for sale golf balls and golf shirts on whichis imprinted the picture of Toucan Sam. Moreover, Kellogghas presented a mass-marketed 1982 animated televisionadvertisement wherein Toucan Sam is portrayed soliciting hisFroot Loops on a golf course, and interacting with a golfplaying bear. Kellogg claims these materials indicate that theToucan Sam marks are related not only to the manufacture ofbreakfast cereal, but to the golf equipment industry as well.However, Kellogg, although it is the largest producer ofbreakfast cereal nationally, has not presented evidence that itsgolf “equipment” has been marketed nationally. The golfballs and shirts are available on a limited basis, either throughthe aforementioned catalog— which is not widelydistributed— or through select local theme stores, such asKellogg’s own “Cereal City” in Battle Creek, Michigan.Moreover, the commercial in which Toucan Sam plays golfis nonetheless an advertisement for Froot Loops, not golfequipment. The district court found that Kellogg’s presencein the golf industry was insignificant, and nothing more thana marketing tool to further boost sales of its cereal. Weagree. We find that one thirty second advertisement does notrender Toucan Sam a golfer, nor does a novelty catalog makeKellogg a player in the golfing industry. In any event,12Kellogg Co. v. Toucan Golf, Inc.No. 01-2394trademark law is grounded on a likelihood of confusionstandard. We find that no consumer would associate Kelloggwith top-line golf equipment based on Kellogg’s extremelylimited licensing of its characters on novelty items. We alsobelieve that if any consumers ever did associate Kellogg andToucan Sam with golf based on the 1982 commercial, it ishighly unlikely that they would still do so twenty years afterthe advertisement last aired. We find the parties’ productscompletely unrelated. And under the benchmarks establishedin this Circuit, the second factor therefore supports aconclusion that confusion is not likely to occur.See ThermaScan, 295 F.3d at 632 (stating that confusion is highlyunlikely where goods are completely unrelated).3. Similarity of the MarksKellogg argues that it can prove a likelihood of confusionnotwithstanding the unrelatedness of the goods. It haspresented several cases to demonstrate that courts have heldfor trademark owners relying heavily on the similarity of themarks, even where the parties’ goods were in differentproduct markets.See, e.g.,Recot, 214 F.3d at 1328 (findinglikelihood of confusion between“Frito Lay” and “Fido Lay”even though one is used for snack chips and one is used fordog food);Hunt Foods & Indus., Inc. v. Gerson StewartCorp., 367 F.2d 431, 435 (C.C.P.A. 1966) (holding “Hunt’s”for canned goods and “Hunt” for cleaning productsconfusingly similar);American Sugar Refining Co. v.Andreassen, 296 F.2d 783, 784 (C.C.P.A. 1961) (finding“Domino” for sugar and “Domino” for pet food confusinglysimilar);Yale Elec. Corp. v. Robertson, 26 F.2d 972, 974 (2dCir. 1928) (finding “Yale” for flashlights and locksconfusingly similar);Quality Inns Int’l, Inc. v. McDonald’sCorp., 695 F. Supp. 198, 221-22 (D. Md. 1988) (findingsimilarity between “McSleep Inn” and McDonald’s’trademarks);John Walker & Sons, Ltd. v. Bethea, 305 F.Supp. 1302, 1307-08 (D.S.C. 1969) (finding “JohnnieWalker” whiskey and “Johnny Walker” hotels confusinglysimilar). But each of these cases is distinguishable. In someNo. 01-2394Kellogg Co. v. Toucan Golf, Inc.132It is also of note that in each of the cases cited by Kellogg, theinfringed upon trademark was the actual name of the senior user’s product.Here, Kellogg claims that TGI has infringed only upon the name of acharacter that represents Kellogg’sproduct. This would again be adifferent case if TGI had named itself “Froot Loops Golf” or somederivative thereof.of the cases cited by Kellogg, the courtsdidfind that thegoods were related.See, e.g.,Recot, 214 F.3d at 1328(finding that some snack chip makers might also make dogfood);Hunt Foods, 367 F.2d at 434 (finding a relationshipbetween the respective products);American Sugar RefiningCo., 296 F.2d at 784 (finding goodsrelated because both aresold at grocery stores);Yale Elec. Corp., 26 F.2d at 974(finding locks and flashlights related because “the trade hasso classed them”). In the other cases cited by Kellogg, thenames, as well as other marks,were either not only similar,but substantially identical,see John Walker & Sons, 305 F.Supp. at 1307-08 (comparing “Johnnie Walker” whiskey to“Johnny Walker” hotels and finding infringement wheredefendant also used same color scheme and same script); orthe similar portion of the senior mark was both famous andfanciful, and thus so distinctive that its use would transcendits market.2Cf. Recot, 214 F.3d at 1328 (stating that “FritoLay” word mark “casts a ‘long shadow which competitorsmust avoid’”) (citations omitted);Quality Inns, 695 F. Supp.at 216-21 (intimating that the prefix mark “Mc” used byMcDonald’s is highly distinctive in regard to anything butsurnames).But here, the parties’ goods are completely unrelated, andthe “Toucan Sam” and “Toucan Gold” word marks aresimilar only in that they each contain the common word“toucan.” Although the name “Toucan Sam” is itself fancifuland distinctive, use of the word “toucan” for cereal is merelyarbitrary. Kellogg has taken an everyday word and applied itto a setting where it is not naturally placed.See, e.g.,Daddy’s Junky Music Stores, 109 F.3d at 280-81 (recognizingdistinctiveness spectrum and stating that a mark is arbitrary14Kellogg Co. v. Toucan Golf, Inc.No. 01-2394when it is an everyday name or thing mismatched to theproduct it represents, such as “Camel” for cigarettes or“Apple” for computers). As opposed to a fanciful mark, anarbitrary mark is distinctive only within its product marketand entitled to little or no protection outside of that area.See,e.g.,Amstar Corp. v. Domino’s Pizza, Inc., 615 F.2d 252, 260(5th Cir. 1980) (implying that plaintiff’s arbitrary term“Domino” is entitled to no protection outside of the sugar andcondiments market). Thus, unlike theRecot,John Walker &Sons, andQuality Innscases, here TGI has not used anydistinctive portion of Kellogg’s word mark at all.Admittedly, we would have afar different case had TGIattempted to use a mark such as “Toucan Sam Gold” for itsline of products, because the “Toucan Sam” word mark, in itsentirety, is fanciful and likely transcends its market in thesame way “Frito Lay” and the “Mc” prefix do.Cf. Recot, 214F.3d at 1328;Quality Inns, 695 F.Supp. at 216-21. Kellogghas not cornered the market on all potential uses of thecommon bird name “toucan” in commerce, only on uses of“Toucan Sam.” In regardto the word marks, TGI’sapparently similar use is therefore not enough to overcomethe unrelatedness of the goods.As for the logos, the actual Toucan Sam design is fanciful.Hence, in step with cases likeRecot, if TGI’s GolfBird issimilar to Toucan Sam’s design, there may be a Lanham Actviolation in spite of the unrelated goods. But we findGolfBird dissimilar to Toucan Sam. GolfBird resembles areal toucan. She has the look and proportions of a toucan thatone would encounter in the wild. Toucan Sam isanthropomorphic, with a discolored, misshaped beak. Hisbody type is not the same as that of a real toucan; and hesmiles and has several other human features. We thereforefind no similarity between Toucan Sam and GolfBird.No. 01-2394Kellogg Co. v. Toucan Golf, Inc.153A set of Toucan Gold clubs costs $1500.4. The Other Confusion FactorsThe other five factors can be disposed of quickly. Kellogghas presented no evidence of actual customer confusion.Thus, we need not consider that factor.The parties do not use similar avenues of commerce.Kellogg distributes Froot Loops through regular wholesaleand retail channels. Kellogg advertises its product nationallyon television and in print. Conversely, TGI distributes itsproduct primarily at trade shows and over the internet. TGIdoes not sell its golf equipment via retail outlets or advertiseon television or radio.Cf. Hunt Foods, 367 F.2d at 435(finding same channels of commerce because both goods aresold at grocery stores);American Sugar Refining Co., 296F.2d at 784 (stating same).TGI’s clientele is primarily, and almost exclusively,comprised of corporations and wealthy golfers.3We findeach of these groups to be sufficiently sophisticated, so as notto believe that Kellogg, a cereal company, has manufactureda golf club named “Toucan Gold.” Moreover, we find thetwo industries sufficiently separate, so that there will rarely,if ever, exist a consumer who is looking for Kellogg’sproduct in the golf equipment market.Next, there is no evidence to suggest that Boyko chose histoucan marks in order to dishonestly trade on Kellogg’smarks. Again, the goods are so unrelated as to dispose of thisfactor with little discussion. Boyko testified that he chose thename “toucan” because of any bird’s obvious connection tothe game of golf, as evidenced through golfing terms such as“eagle,” “birdie,” and “albatross.” The district court foundhis testimony on this issue credible, and Kellogg haspresented no evidence to cause us to doubt that Boyko’sintent was not dishonorable.16Kellogg Co. v. Toucan Golf, Inc.No. 01-2394Lastly, there is no evidence to suggest that TGI has anydesire to enter the cereal game, or that Kellogg has any planto begin manufacturing golf equipment on a full-scale basis.As stated above, we do not believe Kellogg’s limitedlicensing of golf balls and golf shirts with a Toucan Samlogo, nor the single 1982 advertisement wherein Toucan Samparades around a golf course, announces Kellogg’s entry intothe golf market, or its intention to do so.Accordingly, we find no likelihood of confusion betweenTGI’s use of its marks— theword mark “Toucan Gold” andits GolfBird logo; and Kellogg’s marks— the word mark“Toucan Sam” and the ToucanSam design. In fact, the onlyof the eight factors we find infavor of Kellogg is the strengthof its marks. The productssold by each party are whollyunrelated; the similarity betweenthe word marks or the birddesigns is not enough to overcome this unrelatedness; andTGI’s clientele is not the sort to believe that Kellogg nowmanufactures golf clubs. We affirm the decision of thedistrict court and find no likelihood of confusion.B. DilutionKellogg also raises claims of trademark dilution under theFTDA of 1995. The FTDA amended § 43 of the Lanham Actto include a remedy for “dilution of famous marks.” 15U.S.C. § 1125. “Dilution” is defined as “the lessening of thecapacity of a famous mark toidentify and distinguish goodsand services.” FTDA §4, 15 U.S.C. § 1127. Kelloggbelieves that TGI’s marks dilute the fame of the Toucan Sammarks, and that Kellogg may oppose TGI’s marks on thatground and obtain relief under theFTDA. The district courtrejected Kellogg’s argument.Dilution law, unlike traditional trademark infringementlaw, does not exist to protect the public. It is not based on alikelihood of confusion standard,but only exists to protect thequasi-property rights a holder has in maintaining the integrityand distinctiveness of his mark.See Moseley v. V SecretNo. 01-2394Kellogg Co. v. Toucan Golf, Inc.17Catalogue, Inc., 123 S.Ct. 1115, 1122 (2003);see alsoFTDA§ 4, 15 U.S.C. § 1127. We have developed a five part test todetermine whether dilution has occurred under the FTDA: thesenior mark must be (1) famous; and (2) distinctive. Use ofthe junior mark must (3) be in commerce; (4) have begunsubsequent to the senior mark becoming famous; and(5) cause dilution of the distinctive quality of the senior mark.See, e.g.,Kellogg Co. v. Exxon Corp., 209 F.3d 562, 577 (6thCir. 2000).The first four factors are not in dispute and require nodiscussion. The only factor before this Court is whether TGIhas diluted Kellogg’s Toucan Sam marks. The SupremeCourt has held that, under the plain language of the FTDA,for a plaintiff to show dilution, he must demonstrateactualdilution, and not merely the likelihood of dilution.Moseley,123 S.Ct. at 1124.The plaintiff need not show actual loss of sales or profit,but the mere fact that customers might see the junior markand associate it with a famous mark does not establishdilution.Id.at 1124. InMoseley, the defendant created alingerie shop called “Victor’s Little Secret.” The owners ofthe more famous lingerie-related mark “Victoria’s Secret”sued under the FTDA. The Supreme Court held that theplaintiff’s claim failed, even though it presented evidence thatconsumers had associated the two marks. The plaintiff didnot present any empirical evidence that consumers no longerclearly understood to which products the “Victoria’s Secret”mark was related, and thus failed to demonstrate the“lessening of the capacity of the Victoria’s Secret mark toidentify and distinguish goods or services sold in Victoria’sSecret stores or advertised in its catalogs.”Id.at 1125.Likewise, here, Kellogg has presented no evidence that TGI’suse of its toucan marks has caused consumers no longer torecognize that Toucan Sam represents only Froot Loops. Infact, Kellogg’s own 1991 study indicated that 94% ofchildren recognize Toucan Sam and 81% of children relatehim to Froot Loops. Kellogg performed another study in18Kellogg Co. v. Toucan Golf, Inc.No. 01-23941997— after TGI started business— wherein it determinedthat 94% of adults likewise recognized Toucan Sam. Kellogghas failed to present evidence that any segment of thepopulation recognizes Toucan Sam as the spokesbird only forFroot Loops in lesser numbers than it did before TGI startedusing its toucan marks. Accordingly, we affirm the decisionof the district court and deny Kellogg’s FTDA claims.Kellogg asks this Court for a remand on this issue in lightof the fact that the Supreme Court decidedMoseleyandclarified the dilution standard after the briefing stage in thiscase. Kellogg believes it is entitled to the opportunity topresent empirical evidence of actual dilution before thedistrict court. We find a remand inappropriate. InMoseley,the Supreme Court provided a stricter standard for provingdilution than thelikelihoodof dilution standard that waspreviously employed by this Court.See V Secret Catalogue,Inc. v. Moseley, 259 F.3d 464 (6th Cir. 2001),rev’d, 123S.Ct. 1115 (2003). We find Kellogg’s proffered empiricalevidence insufficient even to meet the lesser standard.IV. Attorney’s Fees and SanctionsTGI has brought a separate motion for sanctions andattorney’s fees. Under § 35(a) of the Lanham Act, theprevailing party may recover attorney’s fees in “exceptionalcases.” 15 U.S.C. § 1117(a). TGI did not raise its claimbelow, but instead raises this issue for the first time onappeal. We have made clearin the past that the award ofattorney’s fees under § 35(a) isat the discretion of the districtcourt alone.U.S. Structures, Inc. v. J.P. Structures, Inc., 130F.3d 1185, 1191-92 (6th Cir. 1997). Having not raised theissue with the district court, TGI’s § 35 claim is waived.Seealso Paccar, Inc. v. Telescan Technologies, L.L.C., 319 F.3d243, 258 (6th Cir. 2003).TGI also moves for “just damages” under Fed. R. App. P.38. That rule provides:No. 01-2394Kellogg Co. v. Toucan Golf, Inc.19If a court of appeals determines that an appeal isfrivolous, it may, after a separately filed motion or noticefrom the court and reasonable opportunity to respondaward just damages and single or double costs to theappellee.TGI’s argument that Kellogg’s appeal is frivolous is basedsolely on the contention that Kellogg’s arguments on appeal“mirror its arguments to the TTAB and the district court—and both tribunals rejected Kellogg’s arguments asuntenable.” Brief for Respondent, at 55. However, the factthat Kellogg has repeated the same argument that failedbelow does not necessarily render that argument frivolous.Kellogg has aggressively sought to protect its marks overthe years.See, e.g.,Exxon Corp., 209 F.3d 562;Kellogg Co.v. Pack ’Em Enters., Inc., 951 F.2d 330 (Fed. Cir. 1991);Kellogg Co. v. Western Family Foods, Inc., 1980 WL 39054,209 U.S.P.Q. 440 (Trademark Tr. & App. Bd. Dec. 22, 1980);see alsoBruce Walkley,Toucan Sam’s Cereal Killer,SYDNEYMORNINGHERALD(Australia), July 27, 1999, at 3(recounting Kellogg’s complaints against a company makingfruit juice). And it has challenged smaller entities even whereit is likely that no trademark infringement claim exists.See,e.g., Sylvia Wieland Nogaki,Seattle Band Throws Kelloggfor a Loop, SEATTLETIMES, Mar. 10, 1995, at A1 (describingKellogg’s battle with a small Seattle music band over thename “Toucans”). But although many of Kellogg’s claimsagainst smaller companies may border on excessive andarguably warrant sanctions, the Supreme Court decision inMoseley, setting forth and changing the standards fortrademark dilution in this Circuit, was not entered until afterbriefs were filed in this appeal. Therefore, we find sanctionsunder Fed. R. App. P. 38 inappropriate in this instance.V. ConclusionFor the foregoing reasons, we AFFIRM the decision of thedistrict court.