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Plaintiff's NatraTaste box is rectangular with an overall blue coloring. A significant portion of the background uses lighter blue tones. In the front and back panels, the product name, "NatraTaste", appears in large font across the top portion of the box. The name is spelled out in a cursive font with the "N" and the "T" capitalized. The letters are green with white lining and stand out against the blue background. There is a photograph of a coffee cup and a saucer in the center right. Resting on the saucer is a photograph of an individually wrapped paper packet marked "NatraTaste". Another coffee cup to the lower left and saucers to the upper left cast shadows in the background. In the center right is a bright pink burst containing a comparative advertisement stating "Same Sweetener AS EQUAL.... At A Sweeter Price." The top and side panels also say "NatraTaste" in the same style and color, but in slightly smaller font.
Defendant's Sweetmate box is largely pink, except for the red top one-fifth portion. On the front the name "Sweetmate" appears in blue, cursive font and in thinner and appreciably smaller print than the Sweet'N Low print on the Sweet'N Low box. Although the background has a coffee cup and a glass of ice tea with lemon, they are portrayed in a cartoonish drawing, not a photograph. On the top portion of the front panel of the box is a red, curving wave containing a comparative advertisement: on the left is the statement "Compare'N Save" in white roman type, and on the right is a bright yellow "sunshine burst" with the statement "same sweetener as SWEET'N LOW at a SWEETER PRICE." At the bottom of the right side panel is the statement in small print "Sweet'N Low is a registered trademark of [defendant]."
Defendant previously sold a sweetener called Sweetmate (spelled "SweetMate" from 1992-96 and "Sweetmate" from 1996-97) but it used aspartame, not saccharin, as its main sweetening ingredient. The product was repackaged a number of times between 1992, when it was first introduced, and 1997, when the trade dress version currently at issue began to be used. Plaintiff concedes that Sweetmate's trade dress in 1996, which is not a subject of this or any other suit, looked very similar to the 1997 version. But plaintiff points out the following differences: (1) the present Sweetmate packaging no longer advertises itself as a saccharin-free product *567 and (2) whereas the comparative advertising section in the 1996 version spelled out the Sweet'N Low name in ordinary font, the present version uses the Sweet'N Low trademark itself. Plaintiff says that the Sweet'N Low name is now used in a more prominent way and that this is likely to cause confusion among consumers as to the source of Sweetmate.
The NutraSweet box also has its product name in large print on the front of the box. The thick, block letters are in black and give off a very different impression from NatraTaste's curvy, light-colored letters. The NutraSweet box conspicuously features the NutraSweet logo, the red and white swirl. The NutraSweet name and logo have a high recognition rate among consumers and are powerful source identifiers. The combination of the NutraSweet name, presented in this particular color and font, coupled with the red and white swirl logo, has appeared since the early 1980s on numerous products using NutraSweet as an ingredient. The NatraTaste box displays no similar looking logo.
Moreover, the Sweet'N Low name is superimposed on an undulating musical staff, and is set off against a white background. This combination the name Sweet'N Low in dark blue and in bold font superimposed along a musical staff is the well-known Sweet'N Low trademark. Plaintiff's trademark registration indicates that the mark was first used in commerce in 1958, and according to plaintiff, has since gained national recognition due to sustained advertising and numerous promotional efforts.
Significantly, whereas the coffee cup, the pink packet, and glass of ice-tea in the Sweet'N Low box is represented by a stark-looking photograph, the Sweetmate box has cartoon-like drawings of these items. The drawings are tilted at "playful angles" to create a "fun and whimsical" effect. The scattering of leaves and berries adds to this effect. The coffee in the Sweetmate box has a brown hue, in contrast to the Sweet'N Low black coffee. The contrast in the overall image of plaintiff's and defendant's products is striking.
The prominent display of the trade names in conjunction with other contrasts in the trade dresses create an overall impression so different that such confusion is unlikely. The conspicuous display of a nationally recognized brand name and logo makes it improbable that consumers will associate the NutraSweet product with a lesser known brand called NatraTaste. Similarly, the Sweet'N Low name superimposed on a musical staff is a nationally recognized trademark. Consumers are unlikely to confuse Sweetmate with it. The Sweetmate box displays a different product name in a different font, against a different background, with no musical staff, and under a phrase that reads "Compare'N Save".
Plaintiff points out that the Sweet'N Low trademark on the Sweetmate box appears in a larger font than any other word on the package except for the Sweetmate mark itself. But the name Sweetmate appears in letters vastly larger and more prominent. The Sweet'N Low trademark appears with a comparative advertisement stating "Compare'N Save!" and then, "same sweetener as Sweet'N Low at a SWEETER PRICE." Plaintiff can hardly claim in good faith that the phrase "same sweetener as Sweet'N Low at a SWEETER PRICE" is itself confusing since the same comparative statement appears on its own product, NatraTaste: "Same Sweetener as EQUAL.... At A Sweeter Price" (ellipses in original).
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