concurring:
I concur, but write separately because I disagree with the majority’s conclusion that LEXIS is not a strong mark capable of dilution and that LEXIS and LEXUS differ significantly in pronunciation, and I have a different view of the factors that are necessary to a finding of dilution..
It has become talismanic in the New York courts and in this Circuit that a cause of action under section 368-d involves two elements: 1) an extremely strong mark — either because of the mark’s distinctive quality or because it has acquired secondary meaning — and 2) a likelihood of dilution. See Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, *1033369 N.E.2d 1162, 1165-66, 399 N.Y.S.2d 628, 632 (1977); Miss Universe, Inc. v. Patricelli, 753 F.2d 235, 238 (2d Cir.1985); Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112, 120 (2d Cir.1984); Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625 (2d Cir.1983). No showing of competition between the parties or confusion about the source of products is required. See Allied, 42 N.Y.2d 538, 369 N.E.2d at 1165, 399 N.Y.S.2d at 632; Sally Gee, 699 F.2d at 624.
Extremely Strong Trademark
The first element of a dilution cause of action requires the plaintiff to establish that it possesses an extremely strong mark —one “which is ‘truly of distinctive quality’ or which has ‘acquired a secondary meaning in the mind of the public.’ ” Sally Gee, 699 F.2d at 625 (quoting Allied, 42 N.Y.2d 538, 369 N.E.2d at 1166, 399 N.Y.S.2d at 633) (emphasis in original). A trademark has a distinctive quality if it is “distinctive, arbitrary, fanciful or coined” rather than “generic or descriptive.” Allied, 42 N.Y.2d 538, 369 N.E.2d at 1166, 399 N.Y.S.2d at 632. Courts have analyzed distinctiveness for antidilution purposes in much the same way they assess the strength of the mark when evaluating likelihood of confusion. See McDonald’s Corp. v. McBagel’s, Inc., 649 F.Supp. 1268, 1281 (S.D.N.Y.1986); P.F. Cosmetique, S.A. v. Minnetonka Inc., 605 F.Supp. 662, 672 (S.D.N.Y.1985). “To establish secondary meaning it must be shown that through exclusive use and advertising by one entity, a name or mark has become so associated in the mind of the public with that entity or its product that it identifies the goods sold by that entity and distinguishes them from goods sold by others.” Allied, 42 N.Y.2d 538, 369 N.E.2d at 1166, 399 N.Y.S.2d at 633.
The majority concludes that LEXIS is not a strong mark capable of dilution, noting that “the fact that a mark has selling power in a limited geographical or commercial area does not endow it with a secondary meaning for the public generally.” Op. at 1030 (citations omitted). The majority adds:
The strength and distinctiveness of LEXIS is limited to the market for its services-attorneys and accountants. Outside that market, LEXIS has very little selling power. Because only one percent of the general population associates LEXIS with the attributes of Mead’s service, it cannot be said that LEXIS identifies that service to the general public and distinguishes it from others. Moreover, the bulk of Mead’s advertising is devoted to reaching attorneys through professional journals.
Id. at 1031.
This conclusion limits section 368-d’s protection to nationally famous marks, because a strong mark capable of dilution is an element of a section 368-d cause of action and a plaintiff can lose on this ground alone. See, e.g., Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 369 N.E.2d 1162, 1166, 399 N.Y.S.2d 628, 632-33 (1977).
However, “[t]he interest protected by § 368-d is ... the selling power that a distinctive mark or name with favorable associations has engendered for a product in the mind of the consuming public.” Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 624 (2d Cir.1983) (emphasis added). The LEXIS mark has “selling power” among its consuming public-attorneys and accountants. Its lack of selling power among the general public — i.e., the noncon-suming public — should not deprive the company of section 368-d’s protection against dilution. See Dreyfus Fund Inc. v. Royal Bank of Canada, 525 F.Supp. 1108, 1125 (S.D.N.Y.1981) (“The statute should not be read to deprive marks from protection against dilution in limited areas of use, since otherwise it would afford protection only to the most notorious of all marks.”); Wedgwood Homes, Inc. v. Lund, 294 Or. 493, 659 P.2d 377, 381 (1983) (“We see no reason why marks of national renown should enjoy protection while local marks should not. A small local firm may expend efforts and money proportionately as great as those of a large firm in order to establish its mark’s distinctive quality.”). The renown of a senior mark is a factor a court *1034should assess when evaluating the likelihood of dilution, not the strength of the mark.
Further, the district court as a matter of fact found LEXIS to be a very strong mark capable of dilution. Because imagination, thought, and perception are required to associate LEXIS with a computerized legal research service, the district court ruled that the mark is at least suggestive or arbitrary. See Dist.Ct.Op. at 10, 26. Moreover, the district court found the mark to possess secondary meaning because it “distinguishes the LEXIS service from other products and it is uniquely associated by the consuming public with the source of the product.” Id. at 26. It added:
Mead has expended considerable time, effort, and money to promote the LEXIS mark. In 1987, Mead spent $3.8 million in advertising and promotion. This advertising has proven effective, judging from the LEXIS-related revenues, which exceeded $200 million in 1987. These revenues are even more impressive when viewed in light of their growth since 1984, when revenues totalled $400,000.
Id. at 27. These findings cannot be set aside as arbitrary or capricious and amply support a conclusion that LEXIS is a strong mark capable of dilution.
Likelihood of Dilution
Several definitions of dilution exist. The legislative history defined the concept as “unlawful injury caused by the whittling away of an established trade-mark’s selling power and value through its unauthorized use by others upon dissimilar products.” 1954 N.Y.Leg.Ann. 49. The New York Court of Appeals offered the following definition:
The harm that section 398-d is designed to prevent is the gradual whittling away of a firm’s distinctive trade-mark or name. It is not difficult to imagine the possible effect which the proliferation of various non-competitive businesses utilizing the name Tiffany’s would have upon the public’s association of the name Tiffany’s solely with fine jewelry. The ultimate effect has been appropriately termed dilution.
Allied, 42 N.Y.2d 538, 369 N.E.2d at 1165-66, 399 N.Y.S.2d at 632. In Sally Gee, this Court refined these general definitions by describing dilution as “an act which ‘threatens two separable but related components of advertising value. Junior uses may blur a mark’s product identification or they may tarnish the affirmative associations a mark has come to convey.’ ” 699 F.2d at 625 (quoting 3 R. Callman, The Law of Unfair Competition, Trademarks, and Monopolies § 84.2, at 954-55 (footnote omitted)).
By treating similarity of the marks as a separate element of a dilution cause of action and by evaluating the dilution claim without developing an analytical framework, the majority threatens to muddy the already murky waters of antidilution analysis. See, e.g., Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625 (2d Cir.1983) (dilution “remains a somewhat nebulous concept”); Home Box Office v. Showtime/The Movie Channel, 665 F.Supp. 1079, 1087 (S.D.N.Y.) (“a claim for dilution differs markedly from a federal trademark claim and appears less well defined”), aff'd in part, vacated in part, 832 F.2d 1311 (2d Cir.1987); see also Shire, Dilution Versus Deception-Are State An-tidilution Laws an Appropriate Alternative to the Law of Infringement?, 77 Trademark Rep. 273, 293 (1987) [hereinafter cited as “Shire”] (courts “have consistently failed to analyze how a specific defendant’s use has diluted a mark or its selling power when there is no likelihood of confusion”); Greiwe, Antidilution Statutes: A New Attack on Comparative Advertising, 72 Trademark Rep. 178, 183-84 (1982) (“Analysis of the process of dilution has been largely superficial.”).
Applying Sally Gee’s definition, the majority finds little likelihood of dilution because LEXIS circulates in a limited market, the products covered by the LEXIS and LEXUS marks differ substantially, and Mead’s principal consumers-attorneys-are sophisticated. Although I agree with these findings, I believe the majority has failed adequately to define the likelihood of dilution concept.
*1035Defining likelihood of dilution as “tarnishing” is helpful because that principle can be applied in practice. See, e.g., Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 604 F.2d 200 (2d Cir.1979) (plaintiffs distinctive uniform diluted by defendant’s use of a similar uniform in an X-rated movie); Coca-Cola Co. v. Gemini Rising, Inc., 346 F.Supp. 1183 (E.D.N.Y.1972) (plaintiffs “Coca-Cola” mark diluted by defendant’s use of similar lettering in printing “Cocaine” on poster). “Blurring,” however, offers practitioners and courts only marginally more guidance than “likelihood of dilution.”
There is much to be gained by defining a general concept like “blurring” more specifically. As in this instance, confusion in the doctrine has created problems for trademark attorneys advising their clients about adopting trademarks, for potential litigants assessing their chances of pursuing or defending against dilution claims, and for courts attempting to apply the statute. See Shire, 77 Trademark Rep. at 288. In the trademark infringement context, Judge Friendly defined a similarly broad standard-likelihood of confusion-by articulating a multi-factor balancing test that considers:
the strength of [plaintiff’s] mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendant’s good faith in adopting its own mark, the quality of defendant’s product, and the sophistication of the buyers.
Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir.), cert. denied, 368 U.S. 820, 82 S.Ct. 36, 7 L.Ed.2d 25 (1961). This test has provided practitioners and district courts a helpful framework for assessing likelihood of confusion. See, e.g., Lobo Enters., Inc. v. Tunnel, Inc., 693 F.Supp. 71, 76-79 (S.D.N.Y.1988); Toys R Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F.Supp. 1189, 1195-1200 (E.D.N.Y.1983).
Like likelihood of confusion, blurring sufficient to constitute dilution requires a case-by-case factual inquiry. A review of the anti-dilution cases in this Circuit indicates that courts have articulated the following factors in considering the likelihood of dilution caused by blurring:
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
6) renown of the junior mark
The application of these factors here requires reversal of the decision below, although on a basis that I believe differs from that stated by the majority.
1. Similarity of the Marks
Dilution is likely only where the junior mark is similar to the senior mark. See McDonald’s Corp. v. McBagel’s, Inc., 649 F.Supp. 1268, 1281 (S.D.N.Y.1986) (“The similar element that associates defendants’ name with plaintiff’s family of marks, the use of the ‘Me’ prefix with the name of a generic food item, is immediately apparent. New York courts have not hesitated to find ‘whittling down’ of the identity of the trademark where slogans used by two parties bear such a facial similarity.”); Toys R Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F.Supp. 1189, 1208 (E.D.N.Y.1983) (“although the two names are distinguishable, the identity of the ‘R’ Us suffixes ... compels me to conclude that the name Kids V Us is likely to blur Toys ‘R’ Us’ product identification”).
Exact identity between the marks is not required, see Textron, Inc. v. Spi-Dell Watch & Jewelry Co., 283 F.Supp. 920 (S.D.N.Y.) (granting the manufacturer of “SPEIDEL" watch bands an injunction against defendant’s use of trade names “SPI-DELL” and “SPEIDELL” to designate its watch bands), aff'd in part, rev’d in part on other grounds, 406 F.2d 544 (2d Cir.1968), but the more similar the marks the higher the likelihood of dilution. Under some circumstances, of course, lack of similarity alone may be enough to defeat a dilution claim. See, e.g., Universal City Studios, Inc. v. Nintendo Co., 746 F.2d 112 (2d Cir.1984) (“the names and charac*1036ters in dispute [“King Kong” and “Donkey Kong”] are so different that no reasonable question of fact was raised on the issue of blurring”); Tetley, Inc. v. Topps Chewing Gum, Inc., 556 F.Supp. 785, 794 (E.D.N.Y.1983) (“the broad humor defendant [“Pet-ley Flea Bags”] employs serves to prevent the type of blurring which might result from more subtle or insidious effort at humor at plaintiff’s [“Tetley” tea bags] expense.”); Warner Bros., Inc. v. American Broadcasting Cos., 530 F.Supp. 1187, 1198 (S.D.N.Y.1982) (“Plaintiffs [“Superman”] and defendants’ [“The Greatest American Hero”] are so different, the variations upon some of plaintiff’s phrases so distinct, and the use of some of plaintiffs’ characters’ names so contrasted with that of plaintiffs’ works that plaintiffs cannot be said to be in danger of suffering any dilution or damage.”), aff'd, 720 F.2d 231 (2d Cir.1983).
The district court’s Lanham Act analysis found that LEXIS and LEXUS are “virtually identical” in “everyday spoken English,” Dist.Ct.Op. at 12, but that the marks differ physically and will appear in different contexts. The majority reversed the district court’s finding regarding the pronunciation of the two marks, arguing that persons with “careful and precise” diction — notably lawyers and television and radio announcers — would pronounce “lexis” and “lexus” differently. Not only do I conclude that the reversal is unwarranted, but with regret I cannot accept the premise on which it is based. I believe the district court correctly found that the marks are similar in pronunciation, but that “differences in context and physical appearance tend to reduce the similarity of the marks.... ” Dist.Ct.Op. at 13.
2. Similarity of the Products Covered by the Marks
Similarity of the products covered by the marks increases the likelihood of blurring. See, e.g., Toys R Us, 559 F.Supp. at 1208 (“the similarity of the products sold by the stores compels me to conclude that the name Kids V Us is likely to blur Toys ‘R’ Us’ product identification”). Although competition is not required to prevail on a dilution claim, “dilution protects a mark’s selling power, [so] relief is available particularly in an area of normal expansion of the trademark owner’s business.” Id. at 1208. Accordingly, a plaintiff will have a more difficult time establishing blurring when the junior mark appears on a product substantially different from the plaintiff’s. See, e.g., Dreyfus Fund Inc. v. Royal Bank of Canada, 525 F.Supp. 1108, 1125 (S.D.N.Y.1981). (“Dreyfus’ lion marks are not so unique and arbitrary as to deserve protection in fields totally unrelated to Dreyfus’ activities_”); see also Pattis-hall, Dawning Acceptance of the Dilution Rationale for Trademark-Trade Identity Protection, 74 Trademark Rep. 289, 299 (1984) (“No doubt, however, there can be differences between goods so substantial that the use on the diverse product is too remote to cause dilution of the prior mark’s distinctive quality. One is reminded of Learned Hand’s ‘lipstick and steamshovels’ example of no likelihood of confusion....”).
I believe the district court correctly concluded that:
the two products at issue, automobiles and computer assisted legal research, are dissimilar. LEXUS is a consumer product, while LEXUS is primarily a commercial product. LEXUS will be sold through independent retail dealerships, while LEXIS is typically sold through its direct sales force. Mead contends that automobile companies, including General Motors, Hyundai, and Mitsubishi, are involved in the computer industry through subsidiaries. Nevertheless, at the moment Toyota is not involved in the computer industry, and has averred that it has no present intent to enter that field. The evidence, therefore, demonstrates that these two products are not similar.
Dist.Ct.Op. at 13-14.
3. Sophistication of Consumers
Where the plaintiff’s consumers are sophisticated, there is a reduced likelihood that a junior mark will blur the senior mark's selling power. See, e.g., Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 626 *1037(2d Cir.1983) (“Sophisticated retailers and discerning consumers of women’s apparel are unlikely to have blurred vision causing them to see ‘Sally Gee’ upon viewing a Sally Lee label.”). The district court found that Mead’s market for its LEXIS service contains sophisticated consumers — primarily lawyers and accountants. See Dist. Ct.0p. at 18.
4. Predatory Intent
The likelihood of blurring is increased where the junior user acts with predatory intent. Predatory intent involves more than mere knowledge of the senior mark— it requires a showing that the junior user adopted its mark hoping to benefit commercially from association with the senior mark. See, e.g., McDonald’s Corp. v. McBagel’s, Inc., 649 F.Supp. 1268, 1281 (S.D.N.Y.1986) (“Defendants’ print advertisements for the ‘Me (stuffed) Bagel,’ as well as the statement by defendants’ attorney that McBagel’s wished to capitalize on the press attention generated by the McDonald’s policing action, establish defendants’ attempt to take unfair advantage of plaintiff in the instant case.”); Toys R Us, Inc. v. Canarsie Kiddie Shop, Inc., 559 F.Supp. 1189, 1209 (E.D.N.Y.1983) (“After evaluating [defendant’s] testimony, I firmly believe that he knew of Toys “R” Us when he adopted the Kids V Us name for his business and that he intended to take advantage of the uniqueness of plaintiff’s mark.”); Dreyfus Fund Inc. v. Royal Bank of Canada, 525 F.Supp. 1108, 1125 (S.D.N.Y.1981) (“no court has suggested that New York law would not protect the substantial dilution of a strong mark with intent to exploit its favorable impression and associations in the owner’s general field of commerce”).
The fact that the junior user may have acted in good faith in adopting its mark should not itself be sufficient to relieve it of liability if other factors support a finding of blurring. Predatory intent is a factor for courts to weigh when evaluating the likelihood of blurring, not an independent element of the cause of action under section 368-d. Compare Hoover Co. v. Citicorp Venture Capital Ltd., 674 F.Supp. 460, 462 (S.D.N.Y.1987) (noting that a dilution cause of action involves a strong mark and likelihood of dilution and that “[a] relevant but not conclusive factor is the absence of a predatory intent by the junior user of the mark”) (emphasis added) with Lobo Enters., Inc. v. Tunnel, Inc., 693 F.Supp. 71, 79-80 (S.D.N.Y.1988) (holding that plaintiff’s dilution claim would fail absent predatory intent, even assuming plaintiff could establish a strong mark and likelihood of dilution).
Although section 368-d makes no reference to the defendant’s bad faith, there are sound reasons for assessing predatory intent when considering a likelihood of blurring. Section 368-d is of equitable origin, see Sally Gee, 699 F.2d at 625, and predatory intent is inherent in the statute’s legislative history. See 1954 N.Y.Leg.Ann. 49 (“Naturally, the owners of established trade-marks may be expected to welcome protection of their good names against attempts by infringers, with infinite other words to choose from, to obtain a free ride_”) (emphasis added). Moreover, the fact that the junior user believes it can benefit commercially from copying the senior user’s trademark provides strong evidence of the likelihood of blurring. Cf. My-T Fine Corp. v. Samuels, 69 F.2d 76, 77 (2d Cir.1934) (L. Hand, J.) (“a late comer who deliberately copies the dress of his competitors already in the field raises a presumption that customers will be deceived.”). Not surprisingly, numerous courts have recognized predatory intent as relevant to a finding of dilution. See, e.g., Sally Gee, 699 F.2d at 625; Essence Communications, Inc. v. Singh Indus., 70S F.Supp. 261, 270 (S.D.N.Y.1988); Lobo Enters., Inc. v. Tunnel, Inc., 693 F.Supp. 71, 79 (S.D.N.Y.1988); Transamerica Corp. v. Trans America Abstract Serv., Inc., 698 F.Supp. 1067, 1077 (E.D.N.Y.1988); Hoover Co. v. Citicorp. Venture Capital Ltd., 674 F.Supp. 460, 462 (S.D.N.Y.1987); Pan Amer. World Airways, Inc. v. Panamerican School of Travel, Inc., 648 F.Supp. 1026, 1039 (S.D.N.Y.), aff'd, 810 F.2d 1160 (2d Cir.1986); Vitabiotics, Ltd. v. Krupka, 606 F.Supp. 779, 785 (E.D.N.Y.1984); Lord *1038Jeff Knitting Co. v. Warnaco, Inc., 594 F.Supp. 579, 582 (S.D.N.Y.1984).
The district court found that Toyota knew of the LEXIS mark and of Mead’s antidilution objections when it adopted the LEXUS mark, see Dist.Ct.Op. at 16, 31, but that “Toyota’s behavior falls far short of predatory intent.” Id. at 31. In its Lan-ham Act analysis, the district court stated that “there is no evidence that the LEXIS name would benefit Toyota,” Dist.Ct.Op. at 16, and observed that Toyota had offered evidence “that the association of LEXUS with the Mead service was a negative in focus group evaluations of various names.” Id. at 17. In its dilution discussion, however, the district court noted: “Toyota contends that LEXUS connotes, among other things, high technology. To that extent at least, LEXUS benefits from the association with LEXIS.” . Id. at 31. The district court’s unequivocal conclusion that Toyota acted without predatory intent, however, resolves any doubt these observations might raise. Id.
5. Renown of the Senior Mark
As set forth above, a plaintiff must possess an extremely strong mark capable of dilution to prevail under section 368-d. See Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625 (2d Cir.1983); Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 369 N.E.2d 1162, 1165-66, 399 N.Y.S.2d 628, 632 (1977). A court evaluates a mark’s strength with reference to the distinctive quality of the mark or its secondary meaning, not its “fame.” Thus, a mark can be strong enough to warrant protection from dilution without being “famous” or nationally renowned. See Dreyfus Fund Inc. v. Royal Bank of Canada, 525 F.Supp. 1108, 1125 (S.D.N.Y.1981); Wedgwood Homes, Inc. v. Lund, 294 Or. 493, 659 P.2d 377, 381 (1983).
However, as the majority observes, the extent to which the senior mark is famous or nationally renowned affects the mental associations consumers make between the two marks, which in turn bears upon the likelihood of blurring. See Op. at 1031-1032. This fact is inherent in the examples the legislative history recited — “Dupont shoes, Buick aspirin tablets, Schlitz varnish, Kodak pianos, Bulova gowns, and so forth.” 1954 N.Y.Leg.Ann. 49-50. Accordingly, a plaintiff possessing a nationally famous mark needs to focus less on other factors, such as similarity of the products or sophistication of the consumers, to establish blurring. See, e.g., Dreyfus Fund Inc. v. Royal Bank of Canada, 525 F.Supp. 1108, 1125 (S.D.N.Y.1981). (“Dreyfus’ lion marks are not so unique and arbitrary as to deserve protection in fields totally unrelated to Dreyfus’ activities ....”)
The district court found that LEXIS is a strong mark among its primary consumers — seventy-six percent of lawyers and twenty-six percent of accountants readily identified LEXIS with attributes of Mead’s service. See Dist.Ct.Op. at 11. However, LEXIS is not a nationally famous mark on the scale of Dupont, Buick, Schlitz, Kodak, or Bulova — only two percent of the general public recognized the LEXIS mark as describing Mead’s service. See id.
6. Renown of the Junior Mark
This case raises an issue that is likely to arise rarely in dilution law — the prospect that a junior mark may become so famous that it will overwhelm the senior mark. Dilution under this theory might occur where the senior user’s advertising and marketing have established certain associations for its product among a particular consumer group, but the junior mark’s subsequent renown causes the senior user’s consumers to draw the associations identified with the junior user’s mark. Here, for example, Toyota seeks to associate LEXUS with luxury and the carriage trade, which Mead fears may overwhelm LEXIS’s association with indispensability and economy.
The district court found dilution based upon the anticipated renown of the LEXUS mark. Survey evidence revealed that seventy-two percent of the general public associated LEXIS either with Mead’s service or with nothing at all. The fact that only two percent of the population recognized LEX*1039IS as being associated with Mead’s service indicates that the vast majority of the general public associated LEXIS with nothing at all. The district court noted:
The parties have stipulated that in the first nine months of 1989, Toyota expects to spend between $18 million and $23 million on media advertising. Awareness of the LEXUS mark is likely to spread far beyond its potential purchasers through television, radio, billboards and other print advertising.... In short, the LEXUS mark is itself likely to become the sort of “famous” or “celebrated” mark, which Toyota claims is entitled to protection under § 368-d. The effect will surpass “whittling away” — it will dwarf the LEXIS mark.... A hypothetical will perhaps clarify this conclusion. Suppose the telephone surveys conducted in this case were conducted two or three years after the introduction of the LEXUS line of automobiles, with the concomitant blitz of advertising and media attention. The court doubts whether three-quarters of the general population would respond that the word LEXUS brought nothing to mind. Moreover, it is more than likely that, even among Mead customers, the word “lexis” might first bring to mind Toyota’s car.
Dist.Ct.Op. at 30-31.
Balancing the Factors
The district court found a likelihood of dilution, reasoning that Toyota’s promotional campaign for its LEXUS automobile “will dwarf the LEXIS mark,” Dist. Ct.Op. at 30, and that Toyota acted in bad faith — although without predatory intent— by launching its LEXUS line “without any regard for its effect on the LEXIS mark.” Id. at 31. The district court’s dilution analysis did not refer to the other factors discussed above, nor did it conduct a balancing test.
It is the rule in this Circuit that a district court’s findings regarding each of the Polaroid factors are findings of fact to which the clearly erroneous standard applies, but that the balancing of those factors to assess the likelihood of confusion is a legal conclusion subject to de novo appellate review. See Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70, 75-76 (2d Cir.1988); Plus Prods. v. Plus Discount Foods, Inc., 722 F.2d 999, 1004-05 (2d Cir.1983). Because I discern no legitimate distinction between the district court’s role in assessing each of the Polaroid factors and its evaluation of those factors to determine the likelihood of confusion, I believe that the clearly erroneous standard should apply to both findings and that this Court should not employ Plus Product’s approach in its dilution analysis.
Either approach, however, would support a reversal in this case. Although the district court did not use a balancing test, its findings on the various factors demonstrate that it would have found little likelihood of dilution had it done so. LEXIS and LEXUS are pronounced the same, but the marks differ in physical appearance, they will appear in different contexts, and the products bearing the marks are dissimilar. Moreover, Mead’s consumers are sophisticated, Toyota adopted the LEXUS mark without predatory intent, and LEXIS enjoys no national renown.
The only finding that supports a likelihood of dilution is the district court’s conclusion that LEXUS eventually may become so famous that members of the general public who now associate LEXIS or LEXUS- with nothing at all may associate the terms with Toyota’s automobiles and that Mead’s customers may think first of Toyota’s car when they hear LEXIS. See Dist.Ct.Op. at 30-31. This analysis is problematic. First, section 368-d protects a mark’s selling power among the consuming public. Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 369 N.E.2d 1162, 1163-64, 399 N.Y.S.2d 628, 630 (1977); Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 624-25 (2d Cir.1983). Because the LEXIS mark possesses selling power only among lawyers and accountants, it is irrelevant for dilution analysis that the general public may come to associate LEXIS or LEXUS with Toyota’s automobile rather than nothing at all. Second, the district court offered no evidence for its speculation that LEXUS’s fame may cause Mead customers to associate “lexis” *1040with Toyota’s cars. It seems equally plausible that no blurring will occur — because many lawyers and accountants use Mead’s services regularly, their frequent association of LEXIS with those services will enable LEXIS’s mark to withstand Toyota’s advertising campaign.
Therefore, even if we accept the district court’s finding regarding the renown of the LEXUS mark, however, reversal still is required. The differences in the marks and in the products covered by the marks, the sophistication of Mead’s consumers, the absence of predatory intent, and the limited renown of the LEXIS mark all indicate that blurring is unlikely.
Conclusion
For the reasons set forth above, I concur.