Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC

OPINION & ORDER

Defendant Nature Labs, LLC manufactures, markets and sells a line of pet perfumes whose names parody elegant brands sold for human consumption — Timmy Ho-ledigger (Tommy Hilfiger), CK-9 (Calvin Klein’s cK-1), Pucci (Gucci), Bono Sports (Ralph Lauren’s Polo Sports), Miss Clay-bone (Liz Claiborne), and White Dalma-tions (Elizabeth Taylor’s White Diamonds). Most of the companies that purvey these expensive human fragrances have chosen either to accept the implied compliment in this parody — that the mere association of their high-end brand names with a product for animals is enough to raise a smile — or, if they have taken offense, to suffer in silence. Not so plaintiff Tommy Hilfiger Licensing, Inc., which sues for trademark infringement, trademark dilution, false designation of origin, false advertising, and related claims under New York statutory and common law. Defendant moves for summary judgment. For the reasons stated below, defendant’s motion is granted.

I.

The following facts are not in dispute. Tommy Hilfiger Licensing, Inc. (“Hilfiger”) is the owner of the world-famous TOMMY HILFIGER and flag design trademarks used in connection with the sale of numerous high-end products, including fragrances. (Comply 9) The flag design mark is comprised of a combination of red, white, and blue geometric shapes. (Id. ¶ 8) These marks are federally registered, and several of those registrations have achieved incontestable status pursuant to 15 U.S.C. § 1065. (Id. ¶ 10)

In 1995, Nature Labs began developing its line of parody perfume products for use on pets. (Harris Dep. at 14; PL 56.1 ¶ 1; Def. 56.1 ¶ 1) Nature Labs’ initial spoof of Hilfiger was called Tommy Holedigger and had a flag-shaped label with side-by-side *413 red and white squares bordered on top and bottom by a blue stripe with white letters. Hilfiger complained that this use infringed its marks. Nature Labs then changed the name to Timmy Holedigger and changed the label to its present form: inverted side-by-side yellow and red triangles bordered on top and bottom by a blue stripe with white letters. 1 Beneath the new logo design, the following phrase appears: “If You Like Tommy Hilfiger Your Pet Will Love Timmy Holedigger.” Although neither party claims to have performed a disciplined olfactory comparison or chemical analysis, John Harris, the general partner of Nature Labs, testified at his deposition that the two scents are similar, based on his recollection of Hilfiger cologne. An asterisk following the words “Tommy Hilfiger” references a disclaimer in red type on the back label, which states, “This imitation fragrance is not related to Tommy Hilfiger Licensing, Inc.” (PL 56.1 ¶ 7; Def. 56.1 ¶ 7; Lessem Decl. Ex. B; Harris Dep. at 56, 105-06) Another current version of the product, a two-ounce bottle being marketed primarily to PetCo, changes the flag-shape label to a bone with red and yellow triangles and a thick blue border. (Harris Dep. at 74; Lessem Decl. Ex. E) Hilfiger persists that these uses constitute unlawful use of its trademarks.

As noted, Nature Labs’ line of animal perfume includes parodies of several designer fragrances. (PI. 56.1 ¶ 2; Def. 56.1 ¶ 2) All the parody pet colognes are packaged in the same type of bottle, and Nature Labs’ resellers stock at least three and often more of the pet colognes, displaying them next to one another. (Id. ¶ 3) The displays Nature Labs provides to its retailers are labeled “famous pet cologne”; some also include the slogan “Strong enough for a man, but made for a chihuahua.” (Lessem Decl. Exs. D, E) Nature Labs sells its products primarily to pet stores and gift shops, where they retail at approximately $10.00 per four-ounce bottle. (Harris. Dep. at 41, 44). No company other than Tommy Hilfiger has complained to Nature Labs that Nature Labs is inappropriately using its marks. (PI. 56.1 ¶ 4; Def. 56.1 ¶ 4)

II.

Plaintiffs complaint sets forth six categories of claims: (1) trademark infringement under section 32 of the Lanham Act, 15 U.S.C. § 1114, and New York common law; (2) false designation of origin under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); (3) unfair competition under New York common law; (4) trademark dilution under section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c), and New York General Business Law § 360 — Z; (5) false advertising under section 43(a) of the Lan-ham Act, 15 U.S.C. § 1125(a); and (6) deceptive business practices under New York General Business Law § 349. 2

*414 A. Trademark Infringement, False Designation of Origin, and Unfair Competition

The central issue in an action for trademark infringement or false designation of origin under the Lanham Act is whether the unauthorized use of the mark is “likely to cause confusion.” 15 U.S.C. § 1114(1); 15 U.S.C. § 1125(a)(1)(A). Confusion exists where there is a “likelihood that an appreciable number of ordinary prudent purchasers” will be misled or confused as to the source of the goods in question, Mushroom Makers, Inc. v. R.G. Barry Corp., 580 F.2d 44, 47 (2d Cir.1978), or where consumers are likely to believe that the mark’s owner sponsored, endorsed, or otherwise approved of the defendant’s use of the mark, Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200, 204-05 (2d Cir.1979). The court’s conclusion as to whether there is a likelihood of confusion also determines plaintiffs common-law trademark infringement and unfair competition claims. See Pirone v. MacMillan, Inc., 894 F.2d 579, 581, 584-85 (2d Cir.1990).

Hilfiger contends that defendant’s use of the Tommy/Timmy Holedigger name 3 and flag design is likely to cause confusion in the marketplace. Nature Labs appeal’s to defend on two grounds: First, it asserts that there is no likelihood of confusion because the use constitutes an obvious parody. Second, it argues that even if there were some confusion, trademark parodies are a protected form of expression under the First Amendment.

Turning first to the second defense— upon which Nature Labs principally relies — the Second Circuit has recognized that where the unauthorized use of a trademark is part of an expressive work, such as a parody, the Lanham Act must be construed narrowly. Harley-Davidson, Inc. v. Grottanelli, 164 F.3d 806, 813 n. 14 (2d Cir.1999) (quoting Restatement (Third) of Unfair Competition § 25 cmt. i (1995)). Specifically, it has held that the public interest in avoiding consumer confusion must be balanced against the public interest in free speech. Cliffs Notes, Inc. v. Bantam Doubleday Dell Publ’g, 886 F.2d 490, 494 (2d Cir.1989). Cases finding that First Amendment interests prevail involve nontrademark uses of mark — that is, where the trademark is not being used to indicate the source or origin of consumer products, but rather is being used only to comment upon and, in the case of parody, to ridicule, the trademark owner. See, e.g., id.; Charles Atlas, Ltd., v. DC Comics, Inc., 112 F.Supp.2d 330 (S.D.N.Y.2000); Yankee Publ’g Inc. v. News Am. Publ’g Inc., 809 F.Supp. 267 (S.D.N.Y.1992). In such cases, the parodist is not trading on the good will of the trademark owner to market its own goods; rather, the parodist’s sole purpose for using the mark is the parody itself, and precisely for that reason, the risk of consumer confusion is at its lowest. See id.

The balancing test adopted by the Second Circuit thus takes into account the purpose behind trademark law, and “allows greater latitude for works such as parodies, in which expression, and not commercial exploitation of another’s trademark, is the primary intent, and in which there is a need to evoke the original work *415 being parodied.” Cliffs Notes, 886 F.2d at 495.

Hilfiger argues that Nature Labs is not entitled to any consideration under the First Amendment because, first, its product admittedly makes no comment about Hilfiger, and second, the use of the mark as a source identifier on the pet perfume is a trademark use of the mark. Hilfiger points out that when asked at his deposition whether his product was intended to make any comment about Hilfiger, Hilfiger products, or Hilfiger customers, John Harris, the general partner of Nature Labs, said no. (Harris Dep. at 36-37) Harris did, however, testify that he was intending to create a “parody ... targeting] ... Tommy Hilfiger,” “a fun play on words,” or “spoof ... [t]o create enjoyment, a lighter side.” (Id. at 30-31, 36) Although Harris had difficulty expressing the parod-ie content of his communicative message, courts have explained that:

Trademark parodies ... do convey a message. The message may be simply that business and product images need not always be taken too seriously; a trademark parody reminds us that we are free to laugh at the images and associations linked with the mark. The message also may be a simple form of entertainment conveyed by juxtaposing the irreverent representation of the trademark with the idealized image created by the mark’s owner.

See L.L. Bean, Inc. v. Drake Publishers, Inc., 811 F.2d 26, 34 (1st Cir.1987); see also Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 321 (4th Cir.1992)(quoting id.). One can readily see why high-end fashion brands would be ripe targets for such mockery, and why pet perfume is a clever vehicle for it. Even if not technically a parody, Nature Labs’ use is at least a pun or comical expression— ideas also held to be entitled to First Amendment protection. See Yankee Publ’g, 809 F.Supp. 267, 279 n. 11; Charles Atlas, 112 F.Supp.2d at 337-38 & n. 11.

Hilfiger’s second contention, however, merits more attention, for it is clear that when another’s mark is used for source identification in a way likely to cause consumer confusion, it is actionable under the Lanham Act. See, e.g., Harley-Davidson, 164 F.3d at 812. The First Amendment affords no protection because trademark law permissibly regulates misleading commercial speech. See Yankee Publ’g, 809 F.Supp. at 276. See generally Robert C. Denicola, Trademarks as Speech, 1982 Wise. L.Rev. 158; Note, Trademark Parody, 72 Va. L.Rev. 1079 (1986). In this case, Nature Labs arguably uses an adaptation of the Hilfiger mark for the dual purpose of making an expressive comment and selling a noncompeting product, an area where it has been noted that line-drawing becomes rather difficult. See Deere & Co. v. MTD Products, Inc., 41 F.3d 39, 45 (2d Cir.1994); N.Y. Stock Exch. v. New York, New York Hotel, LLC, 69 F.Supp.2d 479, 493-94 (S.D.N.Y.1999), aff’d in part and rev’d in part, 293 F.3d 550 (2d Cir.2002). However, because the mark is being used at least in part to promote a somewhat non-expressive, 4 commercial product, the First *416 Amendment does not extend to such use, or to the extent that it does, the balance tips in favor of allowing trademark recovery, if in fact consumers are likely to be confused. See Harley-Davidson, 164 F.3d at 812-13; United We Stand Am., Inc., v. United We Stand, Am. N.Y., Inc., 128 F.3d 86, 93 (2d Cir.1997); Schieffelin & Co. v. Jack Co. of Boca, 850 F.Supp. 232, 249 n. 9 (S.D.N.Y.1994). When a parodist makes trademark use of another’s mark, it should be entitled to less indulgence, even if this results in some residual effect on the free speech rights of commercial actors.

Nevertheless, even without recourse to the First Amendment, Nature Labs’ comical adaptation is still relevant to the extent that the joke is clear enough to result in no confusion under the statutory likelihood of confusion analysis. In such cases, “parody is not really a separate ‘defense’ as such, but merely a way of phrasing the traditional response that customers are not likely to be confused as to source, sponsorship or approval.” Schieffelin, 725 F.Supp. at 1323. In determining whether there is a likelihood of confusion, courts in this Circuit are guided by the eight-factor test articulated by Judge Friendly in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492, 495 (2d Cir.1961). These factors are: (1) the strength of the plaintiffs mark; (2) the degree of similarity between the two marks; (3) the proximity of the products; (4) the likelihood that the prior owner will bridge the gap between the products; (5) actual confusion; (6) the defendant’s bad faith in adopting plaintiffs mark; (7) the quality of defendant’s product; and (8) the sophistication of the buyers. Although these factors plainly involve factual inquiries, the application of these factors to the ultimate question of likelihood of confusion is a question of law. See Hormel Foods Corp. v. Jim Henson Prods., 73 F.3d 497, 502 (2d Cir.1996); Cliffs Notes, 886 F.2d at 495. Thus, where the relevant facts are undisputed, or fall one way as a matter of law, summary judgment is appropriate. See Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 116 (2d Cir.1984).

1. Strength of Plaintiffs Mark

It is undisputed that plaintiffs mark is widely recognized. (Harris Dep. at 51-52) In the usual trademark case, a strong mark is a factor pointing toward a likelihood of confusion. However, “[w]here the plaintiffs mark is being used as part of a jest ... the opposite can be true.” Yankee Publ’g, 809 F.Supp. at 273; see also N.Y. Stock Exch., 69 F.Supp.2d at 484 (citing Hormel Foods, 73 F.3d at 502-OS). “The strength and recognizability of the mark may make it easier for the audience to realize that the use is a parody and a joke on the qualities embodied in trademarked word or image.” McCarthy on Trademarks and Unfair Competition § 31:153 (4th ed.2001) [hereinafter “McCarthy ”]. That is, it is precisely because of the mark’s fame and popularity that confusion is avoided, and it is this lack of confusion that a parodist depends upon to achieve the parody. See Hormel Foods, 73 F.3d at 503; Schieffelin, 850 F.Supp. at 248. (“Certainly it is unremarkable that [defendant] selected as the target of parody a readily recognizable product; indeed, one would hardly make a spoof of an obscure or unknown product!”). In the present case, Nature Labs’ adaptation of Hilfiger’s famous mark likely allows consumers both immediately to recognize the target of the joke and to appreciate the obvious changes to the marks that constitute the joke. A distinctive mark will not favor plaintiff in these circumstances.

2. Similarity of the Marks

The marks are undeniably similar in certain respects. There are visual and phonetic similarities between the words “Tom *417 my Hilfiger” and “Tommy Holedigger” or even “Timmy Holedigger.” Nature Labs admits that its logo deliberately mimics Hilfiger’s and is based upon the Hilfiger mark. (Harris Dep. at 52) It is necessary for the pet perfume to conjure up the original designer fragrance for there to be a parody at all. However, a parody also relies on “equally obvious dissimilarit[ies] between the marks” to produce its desired effect. Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. 785, 790 (E.D.N.Y.1983). “If the difference in wording or appearance of the designation together with the context and overall setting is such to convey to the ordinary viewer that this is a joke, not the real thing, then confusion as to source, sponsorship, affiliation, or connection is unlikely.” McCarthy § 31:155. Here, “the very broadness of the joke is a measure of the difference” between Hilfiger’s marks and Nature Labs’ pet perfume. Tetley, 556 F.Supp. at 790. The whimsical substitution of the dog-related pun, “Holedigger,” on dog perfume, and in some versions, the use of the bone-shaped logo, clearly convey a joking variation on the original. In addition to these changes, there are further alterations to the Hilfiger trademarks on both the early and current pet perfume label designs. In the original “Tommy Holedig-ger” label, the red and white square are reversed and a different font is used. In the current version, “Tommy” is changed to “Timmy,” and the colors and shapes are revised: the red and white squares are changed to red and yellow triangles. These changes reinforce the imitative, yet comedie scheme inherent in a humorous takeoff.

“Moreover, an inquiry into the degree of similarity between the two marks does not end with a comparison of the marks themselves.” Hormel Foods, 73 F.3d at 503 (citation omitted). One must also look to context, because “the setting in which a designation is used affects its appearance and colors the impression conveyed by it.” Id. As noted, the marks in this case appear on pet perfume, a product which itself underscores the parody or pun captured in the label. Further, the packaging of the product bears headings or slogans that highlight the intended silliness. These include: “famous pet perfume”; “Strong enough for a man, but made for a chihuahua”; “T. Holedigger keeps your best friend smelling fresh and clean”; “If You Like Tommy Hilfiger, Your Pet Will Love Timmy Holedigger.” (Lessem Deck Exs. C, D, & E) As another Court put it, “such broad satirical adaptation draws a heavy line between itself and the object of satire.” Tetley, 556 F.Supp. at 785. The last of the above-listed slogans also references a statement in red print on the back of the product that explicitly disclaims any relation between defendant and Tommy Hilfiger. 5 Finally, the Tommy/Timmy Holedig-ger product is always presented to the consumer along with a variety of other parody pet colognes, such as CK-9 and Pucci, each appearing in an identically shaped bottle. As Nature Labs argues, this context immediately reinforces the *418 message that the perfumes are a parody, and that they come from a single source rather than the multiple sources of the parodied marks.

Taken as a whole and in context, as it should be for a fail' evaluation, Nature Labs’ presentation accomplishes what the Second Circuit has said it must: “A parody must convey two simultaneous' — -and contradictory messages — that it is the original but also that it is not the original and is instead a parody.” Cliffs Notes, 886 F.2d at 494. Because the parody is sufficiently strong, the similarities between the marks are outweighed by the differences, and do not contribute to a likelihood of confusion.

3. Proximity of the Products

Although an action for trademark recovery is not limited to cases involving competing products, courts are most vigilant to guard against a likelihood of confusion when the plaintiff and defendant use their marks on directly competing products. See, e.g., Polaroid, 287 F.2d at 495-498. This is true both generally and in particular as to parodies. Thus, even where the use is humorous, courts have shown little tolerance where the mark is used on a competing product. See, e.g., Harley-Davidson, 164 F.3d at 812-13 (“We have accorded considerable leeway to parodists whose expressive works aim their parodie commentary at a trademark or trademarked product, but have not hesitated to prevent a manufacturer from using an alleged parody of a competitor’s mark to sell a competing product.”); Gucci Shops, Inc. v. R.H. Macy & Co., 446 F.Supp. 838, 839-40 (S.D.N.Y.1977) (GUCCHI GOO diaper bag found to infringe GUCCI tote bags); Nabisco Brands, Inc. v. Kaye, 760 F.Supp. 25 (D.Conn.1991) (A2 steak sauce held to infringe A1 steak sauce); cf. N.Y. Stock Exch., 69 F.Supp.2d at 493 (distinguishing other cases on the basis that this case “involves some degree of satiric expression by a non-competitor”); Deere, 41 F.3d at 44 (noting that joking uses of trademarks are deserving of less protection when the object of the joke is the mark of a directly competing product).

Hilfiger urges that its own cologne and the pet cologne fall within the same general class — fragrances—and thus are in competitive proximity. Hilfiger further cites testimony that the Holedigger product was created to smell like Hilfiger’s fragrances, and is marketed by comparative advertising, to support a professed concern that the pet perfume may serve as a market substitute for its own product. This argument simply does not withstand scrutiny. The products in fact do not compete, and they occupy distinct, non-overlapping markets. Because pet perfume is for use on pets, not humans, the products “differ in essential character.” Recot Inc. v. Becton, 2000 WL 1367190, 56 U.S.P.Q.2d 1859, 1861 (2000). Moreover, pet perfume, in its very conception, is a novelty item, a parody of an actual product, for which there is no market independent of the parody. As one Court has noted, “[ejases involving novelty items are the best examples of parody precluding any possibility for consumer confusion.” Schieffelin, 725 F.Supp. at 1324. Even if there is a connection between fragrances for pets and humans, or even if a dense and humorless consumer could mistakenly conclude that plaintiff itself sponsored the humorous line of fragrances, plaintiffs and defendant’s products are sold in different kinds of stores — the former in department or designer stores, the latter in pet stores or gift shops — at markedly different prices. 6 *419 See Tetley, 556 F.Supp. at 790-91. It is thus plain that the products do not have the market proximity to one another that could create a likelihood of confusion.

4. Likelihood Plaintiff Will Bridge the Gap

Plaintiff has presented no evidence that it is likely to bridge the gap and offer a pet perfume like defendant’s, and the evidence does not suggest that the purchasing public would attribute such an enterprise to plaintiff. “In view of [plaintiffs] concern that [defendant’s] use of [plaintiffs] marks may tarnish them, it would be surprising if [plaintiff] had such plans.” N.Y. Stock Exch., 69 F.Supp.2d at 485. This factor cannot favor Hilfiger.

5. Actual Confusion

Nor is there evidence of actual confusion in this case. This is not surprising, as a review of the factors thus far shows that the character and context of Nature Labs’ products quickly dispels any confusion. Although actual confusion need not be shown for a plaintiff to prevail, “[i]f consumers have been exposed to two allegedly similar trademarks in the marketplace for an adequate period of time and no actual confusion is detected either by survey or in actual reported instances of confusion, that can be powerful indication that the junior trademark does not cause a meaningful likelihood of confusion.” Id. (quoting Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 228 (2d Cir.1999)). Where, as here, a product has been on the market for several years, the absence of evidence on this point is considered “a very significant deficiency.” Yankee Publ’g, 809 F.Supp. at 274. Here, it is also significant that Nature Labs now parodies at least 13 other designer brands, not one of which has complained about consumer confusion. See Tetley, 556 F.Supp. at 790. That loud silence gives rise to only one inference: consumers have not been confused.

6.Defendant’s Bad Faith

Plaintiff cites Nature Labs’ intentional copying of Hilfiger’s marks as evidence that defendant acted in bad faith. That evidence, however, does not show that defendant acted with the intent relevant in trademark cases — that is, an intent to capitalize on consumer deception or hitch a free ride on plaintiffs good will. See N.Y. Stock Exch., 293 F.3d 550, 556 n. 1; Yankee Publ'g, 809 F.Supp. at 275. Although it is true that the deliberate adoption of a similar mark may give rise, in the usual case, to a presumption that the copier intended to confuse consumers, in the case of parody, “the intent is not necessarily to confuse the public but rather to amuse”:

In one sense, a parody is an attempt to derive benefit from the reputation of the owner of the mark, if only because no parody could be made without the initial mark. The benefit to the one making the parody, however, arises from the humorous association, not from public confusion as to the source of the marks.

Jordache Enters., Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486 (10th Cir.1987) (holding that LARD ASHE mark on jeans for oversized women was an intentional parody of JORDACHE, but finding no intent to confuse); accord Anheuser-Busch, 962 F.2d at 321-22. The commercial success of a parodist’s product is attributable to consumers who purchased because “they were amused by the cleverness of its design,” and not because they believed it to *420 be the original. Anheuser-Busch, 962 F.2d at 322. Of course, confusion can exist despite the intent to create a parody. “[The] single concern here, however, is whether an intent to parody an existing trademark supports an inference of a likelihood of confusion.... [I]t does not. An intent to parody is not an intent to confuse the public.” Jordache, 828 F.2d at 1486.

7. Quality of Defendant’s Product

The next factor in the Polaroid analysis can cut either way, depending on the product involved. “An inferior product may cause injury to the plaintiff trademark owner because people may think that the senior and junior user came from the same source; or ... products of equal quality may tend to create confusion as to source because of this very similarity.” Hormel Foods, 73 F.3d at 505. In any event, there is no evidence in this case regarding the quality of defendant’s product.

8. Sophistication of Consumers

The final factor to be considered is the sophistication of the consumers and the degree of care likely to exercised in purchasing the product. This factor also fails to assist plaintiff. Although the record does not disclose the exact price of Hilfiger’s product, both sides agree that it is a “high-end” designer fragrance. The substantial price associated with such goods “requires buyers to exercise care before they part with their money, and such sophistication generally militates against a finding of confusion.” Charles of the Ritz, 832 F.2d at 1323. It is also counterintui-tive that buyers of any sophistication will “impulse buy” a bottle of pet perfume priced at $10.00 a bottle. “To the extent that a shopper might make such a purchase, it would likely be after viewing the bottle carefully, grasping the joke, and seeking to share it with others.” Schieffe-lin, 850 F.Supp. at 250; see also id. (“This case is not one where unsophisticated customers may fall prey to similar marks of inexpensive products that are in competitive proximity with each other.”) Because defendant’s “theme and pun on the [Hilfiger] marks are obvious, even a minimally prudent customer would not be confused by the source or affiliation of [defendant’s products]. The purchasing public must be credited with at least a modicum of intelligence.” N.Y. Stock Exch., 69 F.Supp.2d at 487.

An analysis of the foregoing factors yields the conclusion that there is no triable issue of fact on the likelihood of confusion. Rather, defendant’s use of the mark is an obvious parody or pun, readily so perceived, and unlikely to cause confusion among consumers. Compare N.Y. Stock Exch., 293 F.3d 550 (granting defendant summary judgment on infringement claims because a Las Vegas casino’s use of “New York Slot Exchange” on a replica of the Stock Exchange was an “obvious pun and would not cause any confusion among consumers”), Hormel Foods, 73 F.3d 497 (holding that the Muppet puppet “Spa‘am” was an obvious parody of the luncheon meat SPAM and thus not likely to cause confusion), Tetley, 556 F.Supp. 785 (concluding that “Wacky Pack” sticker featuring “Petley Flea Bags” was a heavy-handed parody of TETLEY tea bags unlikely to cause confusion), with Schieffelin, 850 F.Supp. 232 (finding DOM POPIGNON popcorn was not a sufficiently strong parody of DOM PERIGNON champagne to avoid confusion, and explaining “[t]his conclusion is compelled in large measure by the evidence of actual confusion”).

Hilfiger fails to see the humor in all of this. In support of its dour position on the subject, it cites two opinions in which dog treats parodying human food items were found to infringe on the owner’s marks. See Recot, 2000 WL 1367190, 56 U.S.P.Q.2d 1859 (refusing to register the *421 mark FIDO-LAY for dog treats because of the likelihood of confusion with FRITO-LAY (but “confessing] that [they] have at least some doubt about [their] conclusion”)); Grey v. Campbell Soup Co., 650 F.Supp. 1166 (C.D.Cal.1986) (DOGIVA dog biscuits held to infringe GODIVA chocolates), aff 'd, 830 F.2d 197 (9th Cir.1987) (unpublished table decision). I find these cases distinguishable on at least three relevant grounds: first, the dog and human products in those cases were both offered for sale in the same retail establishments; second, unlike Grey, there is no evidence of actual confusion in this ease; and third, dog treats are not inherently a parody item as pet perfume is. To the extent these cases are on point, I respectfully disagree with them.

Hilfiger, and perhaps some others, would do well to read McCarthy on the subject: “No one likes to be the butt of joke, not even a trademark. But the requirement of trademark law is that a likely confusion of source, sponsorship, or affiliation must be proven, which is not the same thing as a ‘right’ not to be made fun of.” McCarthy § 31:155; see also Anheuser-Busch, 962 F.2d at 322 (“The purpose of the Lanham Act is to eliminate consumer confusion, not to banish all attempts at poking fun or eliciting amusement... [or] deprive the commercial world of all humor and levity.”). Although Hilfiger is unamused, it has not offered evidence on the issue of confusion that would justify denying Nature Labs’ motion for summary judgment. That motion therefore is granted.

B. Trademark Dilution

Plaintiffs claims of trademark dilution under section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c), and New York General Business Law § 360-1, are also dismissed.

The federal antidilution act prohibits the commercial use of another person’s famous mark where the junior use causes “dilution of the distinctive quality of the mark.” 15 U.S.C. § 1125(c)(1). Dilution is defined as “the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of — (1) competition between the owner of the famous mark and other parties, or (2) likelihood of confusion, mistake, or deception.” 15 U.S.C. 1127. Similarly, “a likelihood of injury to business reputation or dilution of the distinctive quality of a mark or trade name” will entitle plaintiff to prevail on its state law claim of dilution, “notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services.” N.Y. Gen. Bus. Law § 360-1.

It is undisputed that Hilfiger’s marks have the requisite fame and distinction to warrant protection under the antidilution statutes. See N.Y. Stock Exch., 293 F.3d 550, 555-58. The remaining issue is whether Nature Labs’ use is likely to dilute the marks. Traditionally, dilution under state law has involved “either the blurring of