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Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 55 U.S.P.Q.2d 1051

Facts

Nabisco has sold a breath-freshening chewing gum under the federally registered trademark ICE BREAKERS since December 1995. ICE BREAKERS gum is sold as a traditional, mint-flavored stick in a metallic-blue, holographic, brick-shaped package featuring the stylized mark ICE BREAKERS in white, upper-case letters on the front and back panels.

Issue

Rule

To succeed in trademark infringement and unfair competition claims, a plaintiff must demonstrate that its trademark is protectable and that the defendant's use of its trademark is likely to confuse consumers regarding the source or sponsorship of the plaintiff's product. The court applies the eight Polaroid factors to assess the likelihood of confusion, which include the strength of the mark, similarity of the marks, proximity of the products, likelihood of bridging the gap, actual confusion, defendant's intent, quality of the defendant's product, and consumer sophistication.

Analysis

In applying the Polaroid factors, the court found that the marks DENTYNE ICE and ICE BREAKERS were at best marginally similar, primarily due to the common use of 'Ice.' The prominent display of the DENTYNE brand name significantly reduced the likelihood of consumer confusion. The court noted that the differences in packaging, product form, and overall presentation further distinguished the two products, leading to the conclusion that consumers would not likely confuse the two brands.

The cumulative effect of the differences between the parties' products and in the commercial presentation of their marks creates distinct marketplace impressions. The distinctions here are far more than a cumulation of minor differences between the parties' marks, packaging, and product forms that does not ordinarily establish the absence of likelihood of confusion as a matter of law.

Conclusion

The court affirmed the district court's decision, concluding that there was no likelihood of confusion between the DENTYNE ICE and ICE BREAKERS trademarks.

We therefore affirm.

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