In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1375

ELI LILLY & COMPANY, an Indiana corporation,

Plaintiff-Appellee,

v.

NATURAL ANSWERS, INCORPORATED, a Florida

corporation, and BRIAN A. FEINSTEIN,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. IP 99-1600-C H/G--David F. Hamilton, Judge.

Argued September 11, 2000--Decided November 21, 2000

 Before BAUER, EVANS, and WILLIAMS, Circuit Judges.

 EVANS, Circuit Judge. When Internet start-up

Natural Answers, Inc. began marketing a line of

herbal products called Herbscriptions, we assume

it hoped to avoid getting embroiled in a nasty

court fight, especially one with a global

pharmaceutical giant like the Eli Lilly company.

But no such luck, for here it is (along with its

founder Brian Feinstein), asking us to reverse a

district court order, granted on Lilly’s motion

for a preliminary injunction, which stopped

Natural Answers from marketing its herbal "mood

elevator" HERBROZAC. Although Natural Answers

does its best to paint this case as David versus

Goliath, and hopes for a result similar to that

achieved by David, it doesn’t have much of a

slingshot to carry into the battle.

 The basis of Lilly’s claim is that the name

HERBROZAC comes unfairly close to Lilly’s

protected mark for PROZAC, a prescription drug

used to treat clinical depression. PROZAC has

received considerable media attention since its

rollout in 1988, appearing twice (March 26, 1990,

and February 7, 1994) on the cover of Newsweek.

In 1999 Fortune magazine named it one of the top

six "health and grooming" products of the 20th
Century./1 PROZAC has been prescribed over 240

million times for 17 million Americans,

generating sales of more than $12 billion.

 Natural Answers develops, markets, and sells a

line of herbal dietary supplements that it calls

Herbscriptions. Herbscriptions are positioned as

"drug alternatives" and include supplements

called HerbenolPM, HERBALIUM, HERBASPIRIN, and

HERBADRYL. Natural Answers’ Feinstein testified

that each name was chosen to call to mind the

function of a famous drug from which its name is

derived./2 Although Natural Answers is careful

to characterize its products as alternatives to

drugs, as opposed to substitutes for drugs,

Feinstein testified that he hopes to persuade

consumers not to have "a default reaction to

immediately go to their physician and have a

prescription for something they may not need."

 Natural Answers markets its Herbscriptions line

exclusively through its Internet Web site but

plans to expand its channels of distribution to

include retail outlets like health food and

convenience stores. Natural Answers’ Web site

contains a column labeled "Think Herbs - not

drugs!", under which it reads "Don’t get your

prescriptions filled with drugs . . . Get your

Herbscriptions filled with Nature!" The Web site

also features a table labeled "Herbs v. Drugs"

which contrasts Natural Answers’ products with a

generic "Drug Alternative." In addition, until

December 1999, Natural Answers’ Web site

contained a source code which included the term

"Prozac" as a metatag,/3 and described HERBROZAC

as "a powerful, and effective all-natural and

herbal formula alternative to the prescription

drug Prozac." Internet search engines read source

codes, which are not immediately visible to an

Internet user, in response to search queries.

Natural Answers’ use of "Prozac" as a metatag was

an attempt to guide Internet users searching for

information on PROZAC to Natural Answers’ Web

site. This effort apparently was unsuccessful,

however, because searchers entering the keyword

"Prozac" were swamped with Web sites containing

a greater number of references to PROZAC.

Natural Answers removed the term "Prozac" from

its source codes in response to this lawsuit.

 HERBROZAC is positioned as a "mood elevator."

In order to maintain its status as a "food," and

thus remain beyond the scope of the Food and Drug

Administration’s drug approval process,

HERBROZAC’s label warns that "[t]his product is

not intended to diagnose, treat or cure any

disease." No prescription is necessary to
purchase HERBROZAC. The tablets themselves are

larger than average, dark brown with black specs,

and have a distinctly herbal odor. In contrast,

PROZAC is available only with a doctor’s

prescription, which can be filled only by a

licensed pharmacist. PROZAC tablets are green

and off-white, and smaller than average.

 Before Natural Answers could get HERBROZAC off

the ground, Lilly sued to enjoin use of that

name, claiming infringement under the Lanham

Trademark Act, 15 U.S.C. sec. 1125(a), dilution

under the Federal Trademark Dilution Act, 15

U.S.C. sec.1125(c), and violation of Indiana’s

unfair competition law. Addressing the federal

claims only, the district court held that Lilly

would likely succeed in proving at trial that the

HERBROZAC name is likely to confuse consumers

under the Lanham Act. In addition, after holding

that Lilly was not required to demonstrate actual

dilution in order to obtain relief under the

Trademark Dilution Act, the court found that use

of the HERBROZAC name created a likelihood of

dilution of the PROZAC mark. Accordingly, the

district court enjoined Natural Answers from

further use of the HERBROZAC name and ordered

that the references to PROZAC be removed from

the source files of Natural Answers’ Web site. At

that time, Natural Answers had sold less than

$2,000 worth of the supplement. This appeal

followed.

 The standard for deciding a motion for a

preliminary injunction is well-established and

need not be restated at length. Suffice it to say

that the moving party is required to demonstrate

a likelihood of success on the merits, that it

has no adequate remedy at law, and that it will

suffer irreparable harm if preliminary relief is

denied. Abbott Lab. v. Mead Johnson & Co., 971

F.2d 6, 11 (7th Cir. 1992). If the moving party

can pass this threshold, the court will then

consider any irreparable harm a preliminary

injunction would cause to the nonmoving party, as

well as the consequences to nonparties of

granting or denying the requested relief. Id. at

11-12. Then, sitting as would a court of equity,

the court weighs all of these factors on a

sliding scale; the more likely that the plaintiff

will succeed on the merits, the less the balance

of harms need favor him. Diginet, Inc. v. Western

Union ATS, Inc., 958 F.2d 1388, 1393 (7th Cir.

1992).

 The district court (Judge David F. Hamilton

presiding) painstakingly followed the prescribed

formula, although it devoted the bulk of its

analysis to Lilly’s likelihood of success on the
merits. Because the other factors are easily

resolved, we’ll follow the district court’s lead.

We review the district court’s decision to grant

a preliminary injunction under the abuse of

discretion standard. Abbott Lab., 971 F.2d at 12.

In analyzing the relevant factors, a district

court abuses its discretion only when it makes a

clear error of fact or an error of law. Id. at

13.

 We turn first to the Lanham Act, enacted in

1946. In the Act, Congress explicitly stated it

intended to protect registered marks from

interference by state legislation, prevent unfair

competition, and protect against fraud "by the

use of reproductions, copies, counterfeits, or

colorable imitations of registered marks . . . ."

15 U.S.C. sec. 1127. Against this background

suggesting a broad legislative purpose, courts

have come to a consensus that a Lanham Act

plaintiff need only establish that its mark is

protectable and that the junior mark is likely to

cause confusion among consumers. Munters Corp. v.

Matsui Am., Inc., 909 F.2d 250, 252 (7th Cir.

1990); International Kennel Club of Chicago, Inc.

v. Mighty Star, Inc., 846 F.2d 1079, 1084 (7th

Cir. 1988). Because Lilly registered the PROZAC

mark in 1985 and has used it continuously for

more than 5 years, it is incontestable. See 15

U.S.C. sec. 1065. As a result, Natural Answers

cannot--and does not--argue that the PROZAC mark

is outside the protection of the Lanham Act. See

Park ’N Fly, Inc. v. Dollar Park and Fly, Inc.,

469 U.S. 189, 205 (1985).

 Natural Answers does contend, however, that

consumers are unlikely to be confused by the

HERBROZAC name. In assessing the likelihood of

consumer confusion, we generally consider seven

factors: (1) the similarity between the marks in

appearance and suggestion, (2) the similarity of

the products, (3) the area and manner of

concurrent use of the products, (4) the degree of

care likely to be exercised by consumers, (5) the

strength of the complainant’s mark, (6) any

evidence of actual confusion, and (7) the

defendant’s intent (or lack thereof) to palm off

its product as that of another. Smith Fiberglass

Prods., Inc. v. Ameron, Inc., 7 F.3d 1327, 1329

(7th Cir. 1993). As the district court

recognized, these factors are not a mechanical

checklist, and "[t]he proper weight given to each

. . . will vary from case to case." Dorr-Oliver,

Inc. v. Fluid-Quip, Inc., 94 F.3d 376, 381 (7th

Cir. 1996). At the same time, although no one

factor is decisive, the similarity of the marks,

the intent of the defendant, and evidence of

actual confusion are the most important

considerations. G. Heileman Brewing Co., Inc. v.
Anheuser-Busch, Inc., 873 F.2d 985, 999 (7th Cir.

1989).

 After an exhaustive analysis of each of the

relevant factors, Judge Hamilton concluded that

use of the HERBROZAC name was likely to confuse

consumers. Specifically, he found that the

similarity between the two marks and products,

the strength of the PROZAC mark, consumers’

degree of care in choosing between PROZAC and

HERBROZAC, alleged evidence of actual confusion,

and Natural Answers’ intent to palm off all

created a likelihood of confusion. The conclusion

regarding likelihood of confusion is a finding of

fact which will not be reversed unless it is

clearly erroneous. Smith Fiberglass Prods., 7

F.3d at 1329; AHP Subsidiary Holding Co. v.

Stuart Hale Co., 1 F.3d 611, 616 (7th Cir. 1993).

We’ll now take a closer look at each of the

factors bearing on the likelihood of confusion.

 The similarity between the names PROZAC and

HERBROZAC is obvious: HERBROZAC contains five of

the six letters in PROZAC, and the "B" in

HERBROZAC sounds similar to the "P" in PROZAC.

Natural Answers argues that the two marks are

dissimilar because HERBROZAC may be pronounced

with an emphasis on the first syllable

(HERBrozac), thus rendering the "B" and "P"

sounds less similar than when the second syllable

of HERBROZAC is emphasized (herBROzac). Even

under Natural Answers’ preferred pronunciation

(which seems contrary to the natural

pronunciation of a combination of the root words

"herb" and "Prozac"), however, the two words are

strikingly similar.

 Natural Answers next argues that the HERBROZAC

name merely "calls to mind" PROZAC, while at the

same time distinguishing itself. The mere fact

that one mark brings another mark to mind is not

sufficient to establish a likelihood of confusion

as to the source of the product. Application of

Ferrero, 479 F.2d 1395, 1397 (C.C.P.A. 1973). In

addition, Natural Answers asserts that its

adaptation of the PROZAC name is a parody and

implies that, as such, it is entitled to some

heightened form of protection from trademark

liability. In any case, the HERB prefix,

according to Natural Answers, so significantly

distinguishes HERBROZAC from PROZAC that

consumer confusion is unlikely.

 As the district court found, however, "HERBROZAC

does much more than merely ’call to mind’ the

PROZAC mark." Unlike the mark at issue in
Ferrero, PROZAC is a fanciful word that has no

meaning independent of Lilly’s mark. Such marks

are entitled to the highest protection. See

Seven-Up Co. v. Tropicana Prods., Inc., 356 F.2d

567, 568 (C.C.P.A. 1966) ("with coined words

which are meaningless so far as the English

language is concerned, slight variations in

spelling or arrangement of letters are often

insufficient to direct the buyer’s attention to

the distinction between marks"). In addition, the

district court received evidence that other

pharmaceutical companies have expanded their

product lines to include dietary supplements

based on "St. John’s Wort" (the principal herbal

component of HERBROZAC), increasing the

likelihood that consumers would mistakenly

believe that HERBROZAC is affiliated with or

sponsored by Lilly. Moreover, HERBROZAC is not a

parody of PROZAC. A parody is a humorous or

satirical imitation of a work of art that

"creates a new art work that makes ridiculous the

style and expression of the original." Rogers v.

Koons, 960 F.2d 301, 309-10 (2d Cir. 1992).

Natural Answers does not even attempt to point

out any humor or satire in its imitation of the

PROZAC mark. More important, we previously

cautioned that even if a junior mark meets the

definition of a parody, it still runs afoul of

the trademark laws if it is likely to confuse

consumers. See Nike, Inc. v. "Just Did It"

Enterprises, 6 F.3d 1225, 1228 (7th Cir. 1993)

("the parody has to be a takeoff, not a ripoff").

Given the strong similarity in the marks and the

potential overlap in Lilly’s and Natural Answers’

product lines, the mere addition of the HERB

prefix does not go far enough to distinguish

Natural Answers’ product from PROZAC.

Accordingly, the strong similarity of the marks

weighs heavily in favor of a finding of

likelihood of confusion.

 Another factor is whether HERBROZAC and PROZAC

are similar products. On a purely technical level

they are different: HERBROZAC is a food and

PROZAC is a drug. See 21 U.S.C. sec. 321(f)-

(g)(1) (distinguishing between dietary

supplements and drugs for purposes of Federal

Food, Drug and Cosmetic Act); Dietary Supplement

Health and Education Act of 1994, S. Rep. No.

103-410, pt. VIII, sec. 2(2)(A)-(B) (clarifying

that dietary supplements are not drugs and should

not be regulated as drugs). This is a critical

distinction, moreover, because HERBROZAC is not

subject to the rigorous testing and approval

process applied to drugs.

 The fact that HERBROZAC and PROZAC are not the

same product does not end our inquiry, however,

because we are concerned only with whether they
are similar. Although its legal papers take a

contrary position, Natural Answers would

certainly have consumers believe that HERBROZAC

and PROZAC are similar products. Indeed, Natural

Answers describes HERBROZAC as a "mood elevator,"

the mirror image of anti-depressant, and markets

it as an alternative to PROZAC. Natural Answers’

dual-track conception of HERBROZAC--as a PROZAC

alternative for marketing purposes, but a

dissimilar product for legal purposes--is

disingenuous. Moreover, contrary to Natural

Answers’ suggestion, our inquiry in comparing the

two products is not whether they are

interchangeable, but whether "the parties’

products are the kind the public might very well

attribute to a single source (the plaintiff)."

International Kennel Club, 846 F.2d at 1089

(affirming preliminary injunction in favor of dog

show sponsor against manufacturer of toy dogs);

see also Forum Corp. of N. Am. v. Forum, Ltd.,

903 F.2d 434, 442 (7th Cir. 1990) (quoting

International Kennel Club). Because dietary

supplements and drugs serve somewhat similar

functions, and because dietary supplements are an

area of natural expansion for pharmaceutical

companies, HERBROZAC’s similarity to PROZAC is

indicative of a likelihood of confusion.

 It is unlikely that HERBROZAC and PROZAC would

ever be used concurrently. As Lilly points out,

there is some degree of danger that consumers

suffering from self-diagnosed depression will

view HERBROZAC as a PROZAC substitute and never

seek medical advice. However, a consumer must

have a prescription from a doctor in order to

obtain PROZAC, and we have no doubt that doctors

would experience little difficulty in

distinguishing between the two products. Thus,

any consumer with access to PROZAC would

necessarily have the advice of a doctor, who

presumably would explain the merits and demerits

of each product. Accordingly, it is unlikely that

HERBROZAC and PROZAC would be used concurrently.

This factor, therefore, weighs in favor of

Natural Answers.

 Although we will indulge in the assumption that

doctors exercise great care in selecting

medications for their patients, the record

contains scant evidence of the degree of care

likely to be exercised by ordinary consumers.

Natural Answers suggests that the legislative

history of the Dietary Supplement Health and

Education Act--which found that consumers

generally believe that dietary supplements should

not be regulated as drugs--is indicative of a

high standard of care among consumers. See

Dietary Supplement Health and Education Act of
1994, S. Rep. No. 103-410, pt. VIII, sec.

2(9)(B). In addition, Natural Answers asserts

that its Web site, the only medium through which

HERBROZAC is advertised, makes clear that the

product is not associated with Lilly.

 We are not at all sure that Natural Answers’

customers exercise greater than average care.

Natural Answers would have us consider only the

care exercised by doctors, but the first-line

consumers of HERBROZAC are ordinary consumers,

who may or may not seek medical advice before

buying HERBROZAC. Indeed, Natural Answers’

strategy is to divert consumers away from doctors

by "hav[ing] them go natural first and not go

with drugs," so we must look at the degree of

care exercised by all consumers. See Forum Corp.

of N. Am., 903 F.2d at 442 ("the court properly

should . . . consider[ ] the group of potential

purchasers of both products"). Unfortunately for

Natural Answers, there is just no evidence that

consumers as a whole are extraordinarily careful

when it comes to dietary supplements. The

legislative history cited by Natural Answers

demonstrates that consumers are not generally

confused between dietary supplements and drugs,

and maybe even that they are unlikely to think

that HERBROZAC is actually PROZAC, but it

certainly does not address the potential for

confusion concerning Lilly’s sponsorship of, or

affiliation with, HERBROZAC. This is the question

we must answer, see Pebble Beach Co. v. Tour 18

I Ltd., 155 F.3d 526, 543 (5th Cir. 1998), and

neither the cited legislative history nor the

fact that Natural Answers’ Web site does not

visibly mention PROZAC or Lilly helps our

analysis. We will therefore discount the degree

of consumer care factor.

 "The term ’strength’ as applied to trademarks

refers to the distinctiveness of the mark, or

more precisely, its tendency to identify the

goods sold under the mark as emanating from a

particular . . . source." Sands, Taylor & Wood

Co. v. Quaker Oats Co., 978 F.2d 947, 959 (7th

Cir. 1992) (quoting McGregor-Doniger, Inc. v.

Drizzle, Inc., 599 F.2d 1126, 1131 (2d Cir.

1979), superseded by rule on other grounds, as

stated in Bristol-Myers Squibb Co. v. McNeilP.P.C., Inc., 973 F.2d 1033, 1044 (2d Cir.

1992)). Natural Answers concedes, as it must,

that PROZAC is a strong mark. This factor weighs

in favor of a finding of likelihood of confusion.

 The record contains no evidence of actual

consumer confusion, but Lilly cannot be expected

to tender such evidence at this stage. When Lilly
filed this lawsuit, Natural Answers had sold less

than $2,000 worth of HERBROZAC, so it is not

surprising that Lilly cannot identify consumers

who were actually confused about the origin or

sponsorship of HERBROZAC. Even a statistically

reliable consumer survey would likely require a

greater sampling than the total number of

HERBROZAC customers.

 Despite these limitations, Judge Hamilton found

a risk of "initial interest confusion." Such

confusion, which is actionable under the Lanham

Act, occurs when a consumer is lured to a product

by its similarity to a known mark, even though

the consumer realizes the true identity and

origin of the product before consummating a

purchase. Dorr-Oliver, 94 F.3d at 382. The

district court relied upon the phonetic

similarity of HERBROZAC to PROZAC, as well as

Natural Answers’ use of the "Prozac" metatag on

its Web site, to find a risk of initial interest

confusion.

 But we are concerned here with evidence of

actual confusion, not a mere risk of confusion,

and we find no such evidence in the record. The

similarity of the two marks is a separate

consideration in our analysis, and although it

does create a risk of confusion, it does not

constitute evidence of actual confusion. The same

can be said of Natural Answers’ use of the

"Prozac" metatag: it is evidence of Natural

Answers’ intent, see infra, and it creates a risk

of confusion, but it is not evidence of actual

confusion. Such evidence would most likely take

the form of a consumer survey, which would not be

limited to a sampling of HERBROZAC customers

because "initial interest confusion" is complete

prior to any actual purchase. Lilly failed to

take such a survey, or to provide other evidence

of actual confusion. So we must disagree with the

district court that evidence of actual confusion

indicates a likelihood of confusion. We have

previously made clear, however, that evidence of

actual confusion is not essential to a finding of

a likelihood of confusion. E.g., Computer Care v.

Service Sys. Enter., Inc., 982 F.2d 1063, 1070

(7th Cir. 1992).

 The final factor for consideration is Natural

Answers’ intent. Natural Answers urges us to drop

this factor from our analysis, asserting that its

intent (or lack thereof) to confuse consumers is

not probative of whether consumers are likely to

actually become confused. We disagree. The fact

that one actively pursues an objective greatly

increases the chances that the objective will be
achieved, and we have no doubt that this general

principle applies here. For this reason, a

defendant’s intent is an "important factor,"

Computer Care, 982 F.2d at 1070; Processed

Plastic Co. v. Warner Communications, Inc., 675

F.2d 852, 857 (7th Cir. 1982), and can even be

weighed more heavily than other factors. See

Schwinn Bicycle Co. v. Ross Bicycles, Inc., 870

F.2d 1176, 1184-85 (7th Cir. 1989).

 Two facts point to the conclusion that Natural

Answers intended to confuse consumers. First, Mr.

Feinstein admitted that the name HERBROZAC was

coined to remind consumers of PROZAC, in

accordance with Natural Answers’ pattern of

adapting famous marks for use in its

Herbscriptions line. Although Natural Answers now

claims that the intent of the name is only to

describe the general function of the product and

to distinguish it from PROZAC, we have a

difficult time believing this innocent

explanation. The HERBROZAC name does nothing--

other than through its reference to the PROZAC

mark-- to describe the function of "mood

elevation." If, at the conclusion of this case,

Natural Answers is searching for a new name for

its product that truly describes its function, it

might come up with something like "Natural

Answers’ Herbal Mood Elevator," a name that would

describe the product’s function but not infringe

upon Lilly’s mark.

 The second fact probative of Natural Answers’

wrongful intent is its references to PROZAC in

the source codes of its Web site. The clear

intent of this effort, whether or not it was

successful, was to divert Internet users

searching for information on PROZAC to Natural

Answers’ Web site. As the Ninth Circuit explained

in Brookfield Communications, Inc. v. West Coast

Entertainment Corp., 174 F.3d 1036, 1064 (9th

Cir. 1999), "[u]sing another’s trademark in one’s

metatags is much like posting a sign with

another’s trademark in front of one’s store." As

such, it is significant evidence of intent to

confuse and mislead. See id. at 1062; New York

State Soc. of Certified Public Accountants v.

Eric Louis Assoc., Inc., 79 F. Supp.2d 331, 341

(S.D.N.Y. 1999) (defendant’s bad faith in using

plaintiff’s trademark in metatag probative of

likelihood of confusion). Because Natural

Answers’ wrongful intent is so obvious, we weigh

it heavily.

 Having considered each of the relevant factors

in our likelihood of confusion analysis, we

cannot say that the district court erred in
finding such a likelihood. Although the district

court improperly weighed the evidence of actual

confusion, we believe the other factors--

especially the similarity of the marks, the

strength of the PROZAC mark, and Natural

Answers’ intent to confuse--strongly support the

district court’s ultimate conclusion.

Accordingly, we affirm the district court’s

preliminary injunction under the Lanham Act.

 Lilly also brought a claim under the Trademark

Dilution Act of 1995, which opens an alternative

avenue of relief for the owners of famous marks.

The Act provides:

The owner of a famous mark shall be entitled,

subject to the principles of equity and upon such

terms as the court deems reasonable, to an

injunction against another person’s commercial

use in commerce of a mark or trade name, if such

use begins after the mark has become famous and

causes dilution of the distinctive quality of the

mark, and to obtain such other relief as is

provided in this subsection.

15 U.S.C. sec. 1125(c)(1). Courts recognize two

principal forms of dilution: tarnishing and

blurring. Dilution by tarnishing occurs when a

junior mark’s similarity to a famous mark causes

consumers mistakenly to associate the famous mark

with the defendant’s inferior or offensive

product. Panavision Int’l, L.P. v. Toeppen, 141

F.3d 1316, 1326 n.7 (9th Cir. 1998). Dilution by

blurring, the injury at issue here, occurs when

consumers "’see the plaintiff’s mark used on a

plethora of different goods and services,’ . . .

’raising the possibility that the mark will lose

its ability to serve as a unique identifier of

the plaintiff’s product.’" Hormel Foods Corp. v.

Jim Henson Prod., Inc., 73 F.3d 497, 506 (2d Cir.

1996) (quoting 3 McCarthy on Trademarks and

Unfair Competition sec. 24.13[1][a][i] (3d ed.

1995) (hereinafter "McCarthy"); Deere & Co. v.

MTD Prods., Inc., 41 F.3d 39, 43 (2d Cir.

1994))./4 The Trademark Dilution Act seeks to

prevent both of these forms of dilution by

"protect[ing] the trademark owner from the

erosion of the distinctiveness and prestige of a

trademark caused by . . . a proliferation of

borrowings, that while not degrading the original

seller’s mark, are so numerous as to deprive the

mark of its distinctiveness and hence impact."

Illinois High School Ass’n v. GTE Vantage Inc.,

99 F.3d 244, 247 (7th Cir. 1996). The strongest

protection is reserved for fanciful marks that

are purely the product of imagination and have no

logical association with the product. Nabisco,

Inc. v. PF Brands, Inc., 191 F.3d 208, 216 (2d

Cir. 1999).
 There are four elements to Lilly’s Trademark

Dilution Act claim: (1) the PROZAC mark is

famous, (2) Natural Answers adopted its HERBROZAC

name after the PROZAC mark became famous, (3)

use of the HERBROZAC name "causes dilution" of

the PROZAC mark, and (4) Natural Answers’ use of

the HERBROZAC name is commercial and in commerce.

See 15 U.S.C. sec. 1125(c)(1); Syndicate Sales,

Inc. v. Hampshire Paper Corp., 192 F.3d 633, 639

(7th Cir. 1999). The likelihood of confusion, and

whether HERBROZAC competes with PROZAC, are

irrelevant. See 15 U.S.C. sec. 1127. Natural

Answers concedes all but the third element/5--

that HERBROZAC "causes dilution" of PROZAC--so

we will focus our attention solely on that issue.

 As a threshold issue, the parties dispute

whether the "causes dilution" element can be

satisfied by evidence of a mere likelihood of

dilution, or whether proof of actual dilution is

required. The legislative history of the Act does

not specifically address this question, and the

circuit courts to have considered it are divided.

Compare Westchester Media v. PRL USA Holdings,

Inc., 214 F.3d 658, 671 (requiring proof of

actual harm) and Ringling Bros.-Barnum & Bailey

Combined Shows, Inc. v. Utah Div. of Travel Dev.,

170 F.3d 449, 461 (4th Cir.) (same), cert.

denied, 120 S. Ct. 286 (1999) with Nabisco, 191

F.3d at 224-25 (likelihood of dilution

sufficient). See also Times Mirror Magazines,

Inc. v. Las Vegas Sports News, L.L.C., 212 F.3d

157, 179 n.11 (3d Cir. 2000) (dissenting judge

agreeing with majority’s implicit holding "that

the District Court did not err in finding that

irreparable injury may be shown even in the

absence of actual economic harm"). With guidance

from these courts, we’ll take our own stab at

deciding what "causes dilution" means, reviewing

the district court’s statutory interpretation of

that phrase de novo. Komorowski v. Townline MiniMart and Restaurant, 162 F.3d 962, 965 (7th Cir.

1998).

 In Ringling Brothers, the Fourth Circuit set

out a cogent argument for a restrictive reading

of the Trademark Dilution Act that requires the

plaintiff to submit proof of actual economic

harm. The court observed that state antidilution

statutes--upon which the Trademark Dilution Act

is based--typically prohibit the use of a mark

that creates a "likelihood of . . . dilution of

the distinctive quality of a [senior] mark." 170

F.3d at 456 (quoting Model State Trademark Act

sec. 12 (1964), reprinted in 3 McCarthy sec. 22:8

(4th ed. 1998)); see also, e.g., N.Y. Gen. Bus.
Law sec. 360-1 ("Likelihood of . . . dilution of

the distinctive quality of a mark . . . shall be

ground for injunctive relief . . . ."); Cal. Bus.

& Prof. Code sec. 14330 (same); Fla. Stat. ch.

495.151 (injunction available if "there exists a

likelihood . . . of dilution of the distinctive

quality of the [senior] mark . . . ."). The

federal Act, on the other hand, does not

incorporate the word "likelihood," which implies

an application to future acts that cause

dilution, but instead employs the present tense

"causes dilution." In addition, whereas state

antidilution statutes generally provide only

injunctive relief, indicating that their purpose

is to prevent future harm, the federal statute

permits injured plaintiffs to obtain damages in

limited circumstances. Ringling Brothers, 170

F.3d at 461. And the conduct proscribed by the

federal statute is "another person’s . . . use,"

not merely threatened use, of a protected mark.

Id. Finally, Ringling Brothers found that the

Act’s definition of dilution, "the lessening of

the capacity of a famous mark to identify and

distinguish goods or services," "makes plain what

the state statutes may not: that the end harm at

which [the Act] is aimed is a mark’s selling

power, not its ’distinctiveness’ as such." Id. at

458. Accordingly, the Fourth Circuit held that

the use of a name that erodes the distinctiveness

of a senior mark but does not affect its holder’s

bottom line is not actionable under the Act. Id.

at 461. The Fifth Circuit essentially adopted

these conclusions in Westchester Media, 214 F.3d

at 670-71.

 The Second Circuit rejected Ringling Brothers in

Nabisco, observing that the Fourth Circuit’s

reading of the statute would subject senior mark

holders to uncompensable injury. After all, the

primary remedy of the Act is an injunction

against future use of an offending mark; damages

are permitted only when the defendant acts

wilfully. 15 U.S.C. sec. 1125(c)(2). Thus, if the

"causes dilution" element requires proof of

actual economic harm, senior mark holders will be

restrained from bringing suit prior to suffering

an injury for which the Act will not compensate

them in many circumstances. Nabisco, 191 F.3d at

224. By the time plaintiffs were permitted to

file suit, moreover, junior mark holders might

have the defense that the senior mark had lost

its distinctiveness due to the numerous other

marks that have copied it. Senior mark holders

would also be open to the argument that they had

failed actively to protect their marks. Finally,

if adjudication of a Trademark Dilution Act claim

were not possible prior to economic injury,

upstart companies would be unable to seek a

declaratory judgment that their mark is
sufficiently different from a senior mark prior

to expending the funds necessary to launch their

product. Id. Congress could not have intended

these unjust and inefficient results.

 In addition, the Fourth Circuit’s interpretation

of the Act holds plaintiffs to an impossible

level of proof. In the case of an immensely

successful product such as PROZAC, it is

possible that the distinctiveness of its mark

could be diluted even as its sales are

increasing, albeit not increasing as much as they

would in the absence of the offending mark. See

Times Mirror Magazines, 212 F.3d at 179 n.11

(Barry, J., dissenting on other grounds; citing

S. Rep. No. 100-515, at 108 (noting that

distinctive quality of a mark "could be

materially reduced during a period of rising

sales")). Even if diminished revenue could be

shown, moreover, it would be immensely difficult

to prove that the loss occurred as a result of

the dilution of the senior mark. Nabisco, 191

F.3d at 224. Customer surveys, the only other

sufficient means of proof suggested in Ringling

Brothers,/6 are expensive, time consuming, and

subject to manipulation. Nabisco, 191 F.3d at

224. In addition, we doubt that dilution of the

distinctiveness of a mark is something that can

be measured on an empirical basis by even the

most carefully constructed survey. It is hard to

believe that Congress would create a right of

action but at the same time render proof of the

plaintiff’s case all but impossible. We therefore

side with the Second Circuit and hold that proof

of a mere "likelihood of dilution" is sufficient

to satisfy the "causes dilution" element of

Lilly’s case.

 How then, should we decide whether Lilly has

demonstrated a likelihood of dilution? The Second

Circuit adopted a number of factors from the much

criticized concurrence in Mead Data Central, Inc.

v. Toyota Motor Sales, U.S.A., Inc., 875 F.2d

1026, 1035 (2d Cir. 1989), added several new

factors, and strongly urged courts to think for

themselves about what considerations they believe

are relevant to dilution. Nabisco, 191 F.3d at

227-28. We’ll accept the Second Circuit’s

invitation and discard a number of the Mead Data

factors that we consider irrelevant.

 In suggesting a test for dilution under New

York’s antidilution statute, the concurring judge

in Mead Data identified the following pertinent

considerations: (1) similarity of the marks, (2)

similarity of the products covered by the marks,

(3) sophistication of consumers, (4) predatory

intent, (5) renown of the senior mark, and (6)

renown of the junior mark. Mead Data, 875 F.2d at
1035. As a number of courts and commentators have

observed, however, several of these factors are

more suited to an inquiry into the likelihood of

confusion. E.g., 4 McCarthy sec. 24:94.2 (4th ed.

2000). For example, the second factor, the

similarity of the products in question, is

completely irrelevant because the Trademark

Dilution Act explicitly states that dilution can

occur "regardless of the presence or absence of

. . . competition between the owner of the famous

mark and other parties . . . ." 15 U.S.C. sec.

1127. Indeed, the primary application of the Act

is to cases involving widely different goods

(i.e., Kodak pianos and Kodak film). I.P. Lund

Trading ApS v. Kohler Co., 163 F.3d 27, 49 (1st

Cir. 1998). Similarly, the sophistication of

consumers, intent of the junior mark holder, and

renown of the junior mark are all probative of

the likelihood of confusion but not particularly

relevant to the "capacity of [the senior] mark to

identify and distinguish" itself./7 Id. at 49-

50. Accordingly, we will consider, as the

district court did, only two of the six factors--

the similarity between the HERBROZAC and PROZAC

marks, and the renown of the PROZAC mark.

 We already have addressed the similarity between

the two marks at issue and concluded that they

are highly similar. As for our second factor,

PROZAC has achieved substantial renown. As we

noted earlier, PROZAC has received an immense

amount of attention from the news media. In

addition to what we have already described,

PROZAC has been the subject of two national

bestsellers (Peter D. Kramer’s "Listening to

Prozac" (1993) and Elizabeth Wurtzel’s "Prozac

Nation: Young and Depressed in America" (1994))

and segments on 60 Minutes, Good Morning America,

and the Oprah Winfrey Show. According to a

Baltimore Sun columnist, PROZAC is "a designer

label, a buzzword, a brand name familiar to . .

. Americans who have taken it, but also [to]

those who wonder if they, too might find a cure

for whatever ails them in the little green-andoff-white capsule." Given this evidence, we

cannot disagree with the district court’s

conclusion that PROZAC "has achieved

extraordinary fame in American culture." We

therefore affirm the district court’s holding

that Lilly has shown a likelihood of success in

proving a likelihood of dilution.

 We also affirm the district court’s assessment

of the remaining preliminary injunction issues.

Irreparable harm is generally presumed in cases

of trademark infringement and dilution. See

Abbott Lab., 971 F.2d at 16 (recognizing the

"well-established presumption that injuries
arising from Lanham Act violations are

irreparable, even absent a showing of business

loss"); American Dairy Queen Corp. v. New Line

Prod., Inc., 35 F. Supp. 2d 727, 729 (D. Minn.

1998) (presuming irreparable harm by dilution).

The brief sales history of HERBROZAC minimizes

any potential harm to Natural Answers posed by

the district court’s injunction, especially given

the structure of the injunction, which permits

Natural Answers to continue to market its product

under an alternative name. Finally, the public

interest is served by the injunction because

enforcement of the trademark laws prevents

consumer confusion. Abbott Lab., 971 F.2d at 19;

International Kennel Club, 846 F.2d at 1092 n.8.

AFFIRMED.

/1 The other five were Gillette disposable safety

razors, Band-Aids, Penicillin, Tampons, and birth

control pills. Any ranking of this sort, of

course, is both subjective and suspect, for

Fortune went on to put Tupperware, the penny

loafer, and the skateboard on its list of 20th

Century bests in the Home, Clothing, and Travel

categories.

/2 Notably, the Herbscriptions line contains one

supplement, ZONK OUT, whose name is not derived

from any other product. ZONK OUT, as its name

suggests, is designed to promote deep sleep.

Feinstein testified that he chose the name ZONK

OUT because he "did not believe that there was a

sleeping preparation out there that was so widely

known with a suffix that would call to mind a

certain function so as to help the consumer know

that [it] . . . would help them sleep." 

/3 The Ninth Circuit recently explained the function

of metatags in Brookfield Communications, Inc. v.

West Coast Entertainment Corp., 174 F.3d 1036,

1045 (9th Cir. 1999):

Metatags are HTML codes intended to describe the

contents of the web site. There are different

types of metatags, but those of principal concern

to us are the "description" and "keyword"

metatags. The description metatags are intended

to describe the web site; the keyword metatags,

at least in theory, contain keywords relating to

the contents of the web site. The more often a

term appears in the metatags and in the text of

the web page, the more likely it is that the web

page will be "hit" in a search for that keyword

and the higher on the list of "hits" the web page

will appear.

/4 The classic hypothetical examples of dilution by

blurring include DuPont shoes, Buick aspirin,

Schlitz varnish, and Kodak pianos. "No one would
confuse Kodak pianos with Kodak film, but the use

of the name on the piano could dilute its

effectiveness as a mark for the film." I.P. Lund

Trading ApS v. Kohler Co., 163 F.3d 27, 49 (1st

Cir. 1998).

/5 Natural Answers argued before the district court

that PROZAC is not a famous mark but concedes

the point on appeal. Even without a concession,

however, we agree with the district court’s

thorough observations concerning the

extraordinary fame PROZAC has achieved.

/6 Ringling Brothers states that "relevant

contextual factors," such as the extent of the

junior mark’s exposure, the similarity of the

marks, and the strength of the senior mark, are

also relevant. 170 F.3d at 465. The court then

suggests, however, that none of these factors

would alone be sufficient, but would only be

relevant "as indirect evidence that might

complement other proof." Id.

/7 The same can be said of several additional

factors considered in Nabisco: "actual confusion

and the likelihood of confusion, shared consumers

and geographic isolation, the adjectival quality

of the junior use, and the interrelated factors

of duration of the junior use, harm to the junior

user, and delay by the senior in bringing the

action." 191 F.3d at 228. Each of these factors

is either relevant only to likelihood of

confusion, or already is incorporated into our

injunction analysis.