memo-trademark-strength-loc-analysis.docx

1011-00003 · Waypoint Capital Partners · Analysis

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PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the use of the addressee and authorized personnel of Calderwood & Harkness LLP and Meridian Consumer Brands LLC. Any unauthorized disclosure, distribution, or copying of this memorandum is strictly prohibited.

MEMORANDUM

Date: October 3, 2022

From: Christy Bauer, Lead Associate, intellectual Property, Calderwood & Harkness LLP

To: Alan Ngo, Responsible Partner, intellectual Property, Calderwood & Harkness LLP

Re: Trademark Strength and Likelihood of Confusion Analysis — Meridian Consumer Brands LLC v. Brindoval Home Goods Inc.

Matter No.: 1011-00003

Billing Code: 11470-001

Client: Meridian Consumer Brands LLC

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I. Executive Summary

You have asked me to assess the strength of the trademark portfolio held by our client, Meridian Consumer Brands LLC ("MCB"), and to evaluate the likelihood of confusion between MCB's registered marks and the "MERIDIAN FRESH" mark recently adopted and used by Brindoval Home Goods Inc. ("Brindoval") in connection with a competing line of household cleaning products. This memorandum applies the eight-factor likelihood-of-confusion test articulated by the Second Circuit in Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492 (2d Cir. 1961), which remains the governing framework for trademark infringement claims brought in the Southern District of New York and before the Trademark Trial and Appeal Board ("TTAB") of the United States Patent and Trademark Office ("USPTO").

Based on my analysis, as set forth in detail below, all eight Polaroid factors, taken individually and in the aggregate, strongly favor a finding of likelihood of confusion between MCB's MERIDIAN and MERIDIAN CLEAN marks and Brindoval's MERIDIAN FRESH mark. MCB's MERIDIAN mark is inherently distinctive — arbitrary as applied to cleaning preparations — and has acquired substantial commercial strength through over eleven years of continuous nationwide use, approximately $94.5 million in fiscal year 2022 cleaning-line revenue, and cumulative advertising expenditures exceeding $47 million. Brindoval's adoption and use of MERIDIAN FRESH for directly competing household cleaning products in International Class 3, coupled with packaging that closely mimics MCB's registered trade dress, creates a high probability that consumers will be confused as to the source, sponsorship, or affiliation of Brindoval's products.

It is my recommendation that MCB proceed with both (1) the filing of a Notice of Opposition before the TTAB to block registration of Brindoval's pending application, U.S. Serial No. 97/412,558, and (2) the filing of a federal complaint in the United States District Court for the Southern District of New York asserting claims under Sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a), as well as a state-law dilution claim under New York General Business Law § 360-l. The merits of MCB's claims are strong, and we should be prepared to move for preliminary injunctive relief at an appropriate time.

II. Background and Relevant Facts

A. The Client — Meridian Consumer Brands LLC

Meridian Consumer Brands LLC is a Delaware limited liability company headquartered at 450 Park Avenue South, 14th Floor, New York, New York 10016. MCB is a consumer packaged goods company that designs, manufactures, markets, and distributes products across three principal product lines: household cleaning products, personal care products, and home fragrance products. MCB's products are distributed through a broad network of retail channels, including major national grocery chains, warehouse club stores, mass-market retailers, and e-commerce platforms, reaching consumers in all fifty states and the District of Columbia.

For the fiscal year ended December 31, 2022, MCB reported total revenue of approximately $387 million, reflecting steady year-over-year growth since its founding. MCB's household cleaning product line, sold under the MERIDIAN family of marks, constitutes the company's flagship brand and its largest revenue-generating segment.

MCB is a portfolio company of Waypoint Capital Partners LLC, a Delaware limited liability company and mid-market private equity firm with offices in New York and Chicago. Waypoint acquired MCB in 2019 in a transaction valued at approximately $625 million, a valuation that reflected, in significant part, the substantial goodwill and brand equity associated with MCB's trademark portfolio, including the MERIDIAN marks at issue in this matter.

MCB's management team includes Sandra Kwan, Chief Executive Officer; Thomas R. Hennessy, General Counsel; and Rachel Dominguez, Vice President of Brand Management. Mr. Hennessy and Ms. Dominguez serve as MCB's primary client contacts for this matter.

B. MCB's Trademark Portfolio

MCB owns a portfolio of three federal trademark registrations covering the MERIDIAN brand as used in connection with household cleaning products, all of which are in good standing with the USPTO:

1. U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark). Registered August 14, 2012, for goods in International Class 3, specifically: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. This registration is based on first use in commerce dating to approximately 2011. The registration has been maintained through timely filing of all required affidavits and renewal documents and is now incontestable under 15 U.S.C. § 1065.

2. U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark). Registered October 18, 2016, for goods in International Class 3, specifically: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. This registration extends the MERIDIAN family of marks to include the composite mark MERIDIAN CLEAN and has been continuously maintained.

3. U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo with wave device). Registered July 10, 2018, for goods in International Class 3. This registration covers the MERIDIAN word mark presented in a distinctive stylized format accompanied by a proprietary wave design device. The wave device is rendered in teal on a white background and has become a recognizable element of MCB's brand identity and product packaging.

MCB has used its MERIDIAN marks continuously in interstate commerce since approximately 2011, representing over eleven years of uninterrupted commercial activity as of the date of this memorandum. MCB's products bearing the MERIDIAN marks are sold in thousands of retail locations and through multiple e-commerce platforms nationwide.

For the fiscal year ended December 31, 2022, MCB's MERIDIAN-branded cleaning product line generated revenue of approximately $94.5 million, representing approximately 24.4% of MCB's total revenue of $387 million. The MERIDIAN cleaning line has been MCB's single most important brand asset since the company's inception.

MCB has invested heavily in advertising and promoting the MERIDIAN cleaning product line. From 2011 through 2022, MCB's cumulative advertising and promotional expenditures attributable to the MERIDIAN cleaning brand totaled approximately $47.2 million. This figure reflects an average annual advertising spend of approximately $3.93 million over the twelve-year period and encompasses expenditures across television, digital media, print, in-store promotions, and cooperative advertising with retail partners. MCB's marketing efforts have generated significant consumer awareness of the MERIDIAN brand, as further discussed in the commercial strength analysis in Section IV.A.2 below.

C. The Opposing Party — Brindoval Home Goods Inc.

Brindoval Home Goods Inc. is a Minnesota corporation headquartered at 7200 France Avenue South, Suite 300, Edina, Minnesota 55435. Brindoval operates as a regional big-box home goods retailer, maintaining a network of 148 retail stores across twelve states in the Midwest and Mountain West regions. Brindoval also operates a growing e-commerce platform accessible at www.crestviewhomegoods.com, through which it sells products to consumers nationwide.

For the fiscal year ended December 31, 2022, Brindoval reported total revenue of approximately $2.1 billion, making it a significant regional retail competitor. Brindoval's business has historically focused on the retail sale of home furnishings, décor, kitchenware, and related products manufactured by third parties. Beginning in 2021, however, Brindoval embarked on a strategic initiative to develop and launch private-label product lines, including household consumables, under its own proprietary brand names.

Brindoval's management team includes Douglas P. Lindstrom, Chief Executive Officer; Karen A. Whitfield, General Counsel; and Nathan Cho, Vice President of Private Label Development. Mr. Cho oversaw the development and launch of the MERIDIAN FRESH product line at issue in this matter.

Brindoval is represented in this matter by the law firm of Halverson McKay & Pruitt LLP, with Gregory T. Halverson serving as lead partner. Halverson McKay & Pruitt is located at 225 South Sixth Street, Suite 4200, Minneapolis, Minnesota 55402.

D. The Infringing Mark and Products

In or about July 2022, Brindoval launched a private-label line of household cleaning products under the mark "MERIDIAN FRESH." The MERIDIAN FRESH product line includes the following specific products: all-purpose spray cleaner, glass cleaner, disinfecting wipes, and dish soap. These products are offered for sale in all 148 of Brindoval's retail store locations and through Brindoval's e-commerce website, making them available to consumers both regionally and, through online sales, nationally.

Prior to the product launch, Brindoval filed a federal trademark application with the USPTO: U.S. Serial No. 97/412,558 — MERIDIAN FRESH (standard character mark), filed May 12, 2022, seeking registration in International Class 3 for cleaning preparations. The application was examined and published for opposition in the Official Gazette on September 6, 2022. The thirty-day opposition period is currently running, and MCB's deadline to file a Notice of Opposition (or request an extension of time) is approaching.

Of particular concern is the packaging and trade dress adopted by Brindoval for its MERIDIAN FRESH products. The MERIDIAN FRESH packaging prominently features a teal-and-white color scheme that closely mirrors the color palette long associated with MCB's MERIDIAN product line. Additionally, and most troublingly, the MERIDIAN FRESH packaging incorporates a stylized wave device that is strikingly similar in form, placement, and visual impression to MCB's registered wave-device logo covered by U.S. Registration No. 5,589,320. A side-by-side comparison of the two designs reveals a degree of similarity that goes well beyond coincidence and raises serious questions regarding Brindoval's intent in developing its brand identity for MERIDIAN FRESH.

Based on publicly available financial information and industry estimates, Brindoval's MERIDIAN FRESH product line generated gross revenue of approximately $6.8 million during the first five months of sales (July through November 2022). Annualized, this figure projects to approximately $16.32 million in yearly revenue — a figure that, while modest relative to Brindoval's overall business, is commercially significant and represents revenue that is being generated, at least in part, through exploitation of the goodwill and consumer recognition associated with MCB's MERIDIAN marks.

E. Procedural Posture

The following summarizes the procedural history of this matter to date:

• May 12, 2022: Brindoval filed U.S. trademark application Serial No. 97/412,558 for MERIDIAN FRESH (standard character mark, IC 3).

• July 2022: Brindoval commenced sales of MERIDIAN FRESH products in retail stores and online.

• September 6, 2022: The MERIDIAN FRESH application was published for opposition in the USPTO's Official Gazette.

• September 26, 2022: Calderwood & Harkness LLP, on behalf of MCB, transmitted a cease-and-desist letter to Brindoval's General Counsel, Karen A. Whitfield, demanding that Brindoval immediately cease all use of the MERIDIAN FRESH mark and related trade dress and withdraw its pending trademark application.

• October 10, 2022: Halverson McKay & Pruitt LLP responded on behalf of Brindoval, denying that Brindoval's use of MERIDIAN FRESH constitutes infringement of any of MCB's trademark rights and declining to cease use or withdraw the application. The response letter did not provide any substantive analysis supporting Brindoval's position and did not address the trade dress similarities.

This memorandum is being prepared in anticipation of and in connection with the following planned legal actions:

1. TTAB Opposition: MCB intends to file a Notice of Opposition before the Trademark Trial and Appeal Board against Brindoval's pending application, Serial No. 97/412,558, on the grounds of likelihood of confusion with MCB's prior registered marks, pursuant to Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d).

2. Federal Court Action: MCB intends to file a complaint in the United States District Court for the Southern District of New York, asserting claims for trademark infringement under 15 U.S.C. § 1114(1), unfair competition and false designation of origin under 15 U.S.C. § 1125(a), and trademark dilution under New York General Business Law § 360-l.

In support of these proceedings, MCB has retained Lakeshore Brand Consulting LLC to conduct a formal consumer confusion survey. The survey will be directed by Dr. Elaine Furman, Ph.D., a recognized expert in consumer behavior and trademark survey methodology. Dr. Furman intends to employ a Squirt-design / modified Eveready protocol, widely accepted by federal courts as a reliable methodology for measuring likelihood of confusion. The survey is expected to be conducted in October 2022 using a sample of several hundred consumers drawn from the relevant purchasing population. Results are expected later this month and will be incorporated into MCB's evidentiary presentation.

III. Legal Framework — The *Polaroid* Test

In the Second Circuit, the question of whether a defendant's use of a mark creates a likelihood of confusion with the plaintiff's mark is assessed under the eight-factor balancing test articulated in Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492 (2d Cir. 1961). The Polaroid test has been consistently applied by the Second Circuit and courts within its jurisdiction for over six decades and remains the controlling analytical framework for trademark infringement claims under both Section 32(1) and Section 43(a) of the Lanham Act. See, e.g., Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 588 F.3d 97, 115 (2d Cir. 2009); Gruner + Jahr USA Publ'g v. Meredith Corp., 991 F.2d 1072, 1077 (2d Cir. 1993); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871 (2d Cir. 1986).

The eight Polaroid factors are:

1. The strength of the senior user's mark;

2. The degree of similarity between the two marks;

3. The proximity of the products or services;

4. The likelihood that the senior user will bridge the gap (i.e., expand into the junior user's market);

5. Actual confusion between the marks;

6. The defendant's good faith (or lack thereof) in adopting its mark;

7. The quality of the defendant's products or services; and

8. The sophistication of the relevant consumers.

It is well-established that no single Polaroid factor is dispositive and that the analysis is not a mechanical counting exercise but rather a qualitative balancing test in which the court must weigh each factor, individually and in the context of the others, to arrive at an overall assessment of whether consumer confusion is likely. See Brennan's, Inc. v. Brennan's Rest., LLC, 360 F.3d 125, 130 (2d Cir. 2004); Lois Sportswear, 799 F.2d at 872. The relative weight to be accorded each factor may vary depending on the circumstances of the particular case.

Notably, in cases involving directly competing goods — as is the case here, where both parties sell household cleaning preparations in International Class 3 — the factors relating to the strength of the mark, the similarity of the marks, the proximity of the products, and the defendant's good faith (factors one through three and factor six) tend to assume the greatest significance. See Arrow Fastener Co. v. Stanley Fastening Sys., L.P., 59 F.3d 384, 396 (2d Cir. 1995); Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 258 (2d Cir. 1987). Where the products are identical, even a lesser degree of mark similarity may suffice to establish likelihood of confusion. Conversely, where, as here, both the marks and the products are highly similar, the case for likelihood of confusion is particularly compelling.

IV. Analysis of Each *Polaroid* Factor

A. Factor 1: Strength of MCB's Marks

The strength of the senior user's mark is the first and often most important factor in the Polaroid analysis. A strong mark is one that is highly distinctive — either inherently or through acquired distinctiveness (secondary meaning) — and is therefore entitled to a broad scope of protection against confusingly similar marks. The strength inquiry involves two components: (1) the inherent or conceptual strength of the mark on the Abercrombie spectrum, and (2) the commercial strength of the mark as demonstrated by marketplace recognition and fame. See Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 384 (2d Cir. 2005); The Sports Auth., Inc. v. Prime Hosp. Corp., 89 F.3d 955, 960 (2d Cir. 1996).

1. Inherent Distinctiveness

Under the well-established Abercrombie classification system, trademarks are categorized, in ascending order of inherent distinctiveness, as: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). Suggestive, arbitrary, and fanciful marks are considered inherently distinctive and are entitled to protection without proof of secondary meaning. Arbitrary and fanciful marks receive the broadest scope of protection.

MCB's principal mark, MERIDIAN, is properly classified as an arbitrary mark as applied to cleaning products. The word "meridian" is an English word with established dictionary meanings — it refers to a great circle of longitude on the Earth's surface, the highest point or culmination of something (as in "the meridian of one's career"), or an acupuncture pathway in traditional Chinese medicine. None of these meanings bears any descriptive, suggestive, or other relationship to the nature, characteristics, function, or qualities of cleaning preparations. The word "MERIDIAN" conveys no information whatsoever about cleaning products to the consumer. It is, in the parlance of trademark law, "a known word used in an unexpected or uncommon way" — the hallmark of an arbitrary mark. See Abercrombie, 537 F.2d at 11 n.12; Star Indus., 412 F.3d at 385.

Arbitrary marks occupy the second-highest tier on the Abercrombie spectrum, below only fanciful marks (i.e., coined or invented words such as KODAK or XEROX). The Second Circuit has consistently held that arbitrary marks are "inherently strong" and "entitled to broad protection." See Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739, 743-44 (2d Cir. 1998).

MCB's secondary mark, MERIDIAN CLEAN, is, at a minimum, suggestive as a composite mark. While the word "CLEAN," standing alone, is descriptive when applied to cleaning products, the combination of "MERIDIAN" (an arbitrary term) and "CLEAN" creates a composite mark that requires an exercise of imagination or a "mental leap" on the part of the consumer to connect the mark to the underlying goods. The mark MERIDIAN CLEAN does not immediately and directly describe the nature, characteristics, or qualities of the goods; rather, it only indirectly suggests an association with cleanliness through the word "CLEAN," while the dominant element "MERIDIAN" provides the primary source-identifying function. Suggestive marks are inherently distinctive and protectable without proof of secondary meaning. See Abercrombie, 537 F.2d at 10-11.

Importantly, all three of MCB's MERIDIAN marks are registered on the Principal Register of the USPTO. Registration on the Principal Register creates a statutory presumption of validity and distinctiveness under 15 U.S.C. § 1057(b), which shifts the burden to the defendant to rebut the presumption. Moreover, MCB's first registration (Reg. No. 4,218,506) has now achieved incontestable status under 15 U.S.C. § 1065, further strengthening MCB's position. An incontestable registration constitutes "conclusive evidence" of the registrant's exclusive right to use the mark in commerce in connection with the specified goods, subject only to the limited defenses enumerated in 15 U.S.C. § 1115(b). See Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 196 (1985).

2. Commercial Strength / Acquired Distinctiveness

Beyond inherent distinctiveness, the commercial strength of MCB's MERIDIAN marks in the marketplace provides additional, powerful support for a finding of strength under the first Polaroid factor. Commercial strength is established through evidence of extensive use, advertising, sales volume, and consumer recognition. See Lois Sportswear, 799 F.2d at 873-74.

The following facts demonstrate the significant commercial strength of MCB's MERIDIAN marks:

• Duration of Use: MCB has used the MERIDIAN mark in interstate commerce continuously since approximately 2011 — a period spanning over eleven years as of the date of this memorandum. The Second Circuit has recognized that long, continuous use of a mark is probative of its commercial strength. See Savin Corp. v. Savin Grp., 391 F.3d 439, 457 (2d Cir. 2004).

• Geographic Scope of Use: MCB's MERIDIAN-branded products are distributed nationwide across all fifty states and the District of Columbia, through major grocery chains, warehouse club stores, mass-market retailers, and e-commerce platforms. This breadth of distribution ensures that the MERIDIAN mark has been exposed to a vast consumer audience.

• Sales Volume: MCB's MERIDIAN cleaning product line generated revenue of approximately $94.5 million for the fiscal year ended December 31, 2022. This figure represents approximately 24.4% of MCB's total corporate revenue of $387 million and constitutes a substantial volume of sales by any measure. Courts routinely cite annual revenue in the tens of millions of dollars as evidence of strong commercial strength. See Star Indus., 412 F.3d at 386.

• Advertising and Promotion: MCB has made cumulative advertising and promotional expenditures of approximately $47.2 million on the MERIDIAN cleaning product line over the twelve-year period from 2011 through 2022, representing an average annual advertising spend of approximately $3.93 million. This consistent and substantial investment in brand-building activity, spanning television, digital media, print, in-store promotions, and cooperative advertising with retail partners, has generated significant consumer awareness and recognition of the MERIDIAN brand.

• Federal Registrations: MCB holds three separate federal trademark registrations covering the MERIDIAN mark, the MERIDIAN CLEAN mark, and the MERIDIAN stylized logo with wave device (Reg. Nos. 4,218,506; 5,034,771; and 5,589,320, respectively). The existence of multiple federal registrations reflects both MCB's deliberate investment in protecting its brand and the USPTO's repeated determination that the MERIDIAN marks satisfy the statutory requirements for registration.

• Corporate Valuation: MCB's parent company, Waypoint Capital Partners LLC, acquired MCB in 2019 for approximately $625 million. While the purchase price reflects the value of the entire business, the substantial premium paid is attributable in significant part to the goodwill and brand equity associated with MCB's trademark portfolio, including and especially the MERIDIAN marks. This acquisition valuation provides indirect but powerful evidence of the commercial significance and value of the MERIDIAN brand. See Savin Corp., 391 F.3d at 457 (considering evidence of brand valuation in assessing commercial strength).

Conclusion on Factor 1: MCB's MERIDIAN marks possess both strong inherent distinctiveness (as arbitrary marks on the Abercrombie spectrum) and significant acquired commercial strength (as demonstrated by over eleven years of continuous nationwide use, approximately $94.5 million in annual revenue, $47.2 million in cumulative advertising expenditures, three federal registrations including one incontestable registration, and a corporate acquisition valuation of $625 million). This factor weighs heavily in MCB's favor.

B. Factor 2: Similarity of the Marks

The second Polaroid factor requires an assessment of the similarity of the marks in terms of their overall impression, taking into account appearance (sight), sound, and meaning. See Gruner + Jahr, 991 F.2d at 1078. The critical inquiry is not whether the marks can be distinguished when placed side by side, but rather "whether the impression which the infringing mark is likely to make on the general populace will be similar to the impression made by the original mark." McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1133 (2d Cir. 1979). In conducting this analysis, the court considers the marks as they would be encountered by consumers in the marketplace — often imperfectly recalled from memory rather than carefully compared in a controlled setting.

1. Sight. The visual comparison between MCB's marks and Brindoval's mark is striking. MCB's principal mark is MERIDIAN (standard character); its secondary mark is MERIDIAN CLEAN (standard character). Brindoval's mark is MERIDIAN FRESH (standard character). The dominant element in all three marks — the four-syllable, eight-letter word "MERIDIAN" — is identical across MCB's and Brindoval's marks. The word "MERIDIAN" is the first and most prominent word in each mark, and it is the element that will make the strongest impression on consumers' visual perception and memory.

The only point of visual difference between MERIDIAN CLEAN and MERIDIAN FRESH is the substitution of the word "FRESH" for the word "CLEAN." Both "CLEAN" and "FRESH" are common, single-syllable English words that function as descriptive or laudatory modifiers in the context of cleaning products. A consumer encountering "MERIDIAN FRESH" on a store shelf would reasonably perceive it as a variant, line extension, or reformulation of the "MERIDIAN CLEAN" product line — not as a product from a different source. The Second Circuit has consistently held that the addition of a descriptive or generic term to a dominant element does not create a sufficiently distinct commercial impression to avoid confusion. See Dreyfus Fund Inc. v. Royal Bank of Can., 525 F. Supp. 1108, 1115 (S.D.N.Y. 1981); In re Chatam Int'l, Inc., 380 F.3d 1340, 1343 (Fed. Cir. 2004) (in TTAB context).

Compounding the visual similarity of the word marks, Brindoval's MERIDIAN FRESH product packaging employs a teal-and-white color scheme and a stylized wave device that are strikingly similar to MCB's registered stylized logo with wave device (U.S. Reg. No. 5,589,320). The combined effect of an identical dominant word element, a descriptive modifier of the same type, and closely imitative trade dress creates an overall visual impression that is highly likely to cause consumer confusion.

2. Sound. The phonetic similarity between the marks further supports a finding of confusion. Both MCB's marks and Brindoval's mark begin with and are dominated by the four-syllable word "MERIDIAN" — pronounced identically in both — /mə-ˈri-dē-ən/. This is the longest and most distinctive phonetic element in each mark and the element most likely to be remembered and verbalized by consumers.

The addition of the monosyllabic word "FRESH" at the end of Brindoval's mark does not materially alter the aural impression. When consumers refer to these products in casual conversation — for example, asking a family member to "pick up some Meridian cleaner" or telling a store associate they are "looking for the Meridian products" — the distinguishing modifier is likely to be dropped or overlooked entirely. The phonetic dominance of "MERIDIAN" in both marks renders them aurally confusingly similar.

3. Meaning / Commercial Impression

The overall commercial impression conveyed by MERIDIAN FRESH is that of a product line extension or variant of MCB's established MERIDIAN and MERIDIAN CLEAN brands. This is precisely the type of confusion that trademark law is designed to prevent. Consumers encountering MERIDIAN, MERIDIAN CLEAN, and MERIDIAN FRESH on adjacent store shelves would naturally and reasonably assume that all three products originate from the same source — that MERIDIAN FRESH is simply the latest offering from the maker of MERIDIAN CLEAN.

This assumption is reinforced by the common practice in the consumer packaged goods industry of extending established brand names through the addition of descriptive modifiers to denote product variants. Examples are legion: "Tide Original" and "Tide Fresh" (Thackeray Corporation); "Lysol Clean" and "Lysol Fresh" (Ostrander & Co.); "Clorox Clean-Up" and "Clorox Fresh Scent" (Bramwell Group). Consumers are trained by marketplace experience to view marks like MERIDIAN CLEAN and MERIDIAN FRESH as related products from a common source, not as products from different companies.

The shared word "MERIDIAN" conveys the same fundamental source-identifying meaning in both marks. That word is the element that consumers associate with MCB as the origin of the goods. The descriptive modifiers "CLEAN" and "FRESH" convey secondary meanings related to product characteristics but do not alter the source-identifying function of the dominant term.

Conclusion on Factor 2: MCB's marks and Brindoval's MERIDIAN FRESH mark are highly similar across all three dimensions of comparison — sight, sound, and meaning — with the identical dominant element "MERIDIAN" and closely imitative trade dress. This factor strongly favors MCB.

C. Factor 3: Proximity of the Products

The third Polaroid factor examines the degree of proximity or relatedness between the senior user's goods and the junior user's goods. Where the products are directly competitive, this factor weighs heavily in favor of finding a likelihood of confusion. See Mobil Oil Corp., 818 F.2d at 258; Cadbury Beverages, Inc. v. Cott Corp., 73 F.3d 474, 480 (2d Cir. 1996).

The proximity of the products in this case could not be closer. MCB's MERIDIAN and MERIDIAN CLEAN marks are registered and used in connection with cleaning preparations in International Class 3, specifically: all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. Brindoval's MERIDIAN FRESH mark is used in connection with cleaning preparations in International Class 3, specifically: all-purpose spray cleaner, glass cleaner, disinfecting wipes, and dish soap.

The products at issue are not merely related — they are directly competitive. Both MCB and Brindoval sell household cleaning preparations that serve the same consumer needs, in the same product category, classified under the same International Class at the USPTO. The overlap is not partial or incidental; it extends to specific product sub-categories:

• All-purpose cleaners: MCB sells all-purpose cleaners under MERIDIAN; Brindoval sells an all-purpose spray under MERIDIAN FRESH.

• Glass cleaners: Both MCB and Brindoval sell glass cleaners under their respective marks.

• Disinfecting products: MCB sells disinfecting sprays under MERIDIAN; Brindoval sells disinfecting wipes under MERIDIAN FRESH.

Moreover, both parties' products are sold through overlapping distribution channels. MCB's products are available through grocery stores, club stores, mass-market retailers, and e-commerce platforms. Brindoval's MERIDIAN FRESH products are sold through Brindoval's 148 retail locations — which, as a big-box home goods retailer, are the same type of mass-market retail environment in which MCB's products are sold — as well as through Brindoval's e-commerce website, which is accessible to consumers nationwide. The result is that a consumer may encounter MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products in the same types of retail environments, if not in the same physical stores.

Courts have consistently held that where the parties' goods are identical or closely overlapping and are sold in the same channels of trade, the proximity-of-products factor weighs decisively in favor of the trademark owner. See Arrow Fastener, 59 F.3d at 396; Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 967 (2d Cir. 1981).

Conclusion on Factor 3: The products sold under MCB's marks and Brindoval's MERIDIAN FRESH mark are identical or closely overlapping, occupy the same International Class, and are sold through overlapping distribution channels. This factor weighs decisively in MCB's favor.

D. Factor 4: Likelihood That the Senior User Will Bridge the Gap

The fourth Polaroid factor considers the likelihood that the senior user will "bridge the gap" between its products and the junior user's products by expanding into the junior user's market. See Polaroid, 287 F.2d at 495. This factor is most relevant where the parties' current products or services are not identical, as it addresses whether the senior user's natural trajectory of brand expansion would bring it into direct competition with the junior user.

In the present case, this factor is effectively inapplicable because there is no gap to bridge. As discussed in Section IV.C above, MCB and Brindoval already operate in the same product category — household cleaning preparations in International Class 3 — and their product lines overlap in specific sub-categories (all-purpose cleaners, glass cleaners, disinfecting products). MCB does not need to "bridge" any gap to arrive in a market that it has occupied for over a decade.

To the limited extent that a gap may be identified — Brindoval's MERIDIAN FRESH line includes dish soap, a product that MCB does not currently sell under the MERIDIAN mark — MCB's expansion into adjacent cleaning sub-categories is both natural and foreseeable. MCB already operates across household cleaning, personal care, and home fragrance product lines. The addition of a dish soap product to the MERIDIAN cleaning line would be a logical and commercially unremarkable extension of MCB's existing brand architecture. Courts have recognized that expansion into closely related product sub-categories within the same general field constitutes a natural and foreseeable "bridge." See Scarves by Vera, Inc. v. Todo Imports Ltd., 544 F.2d 1167, 1174 (2d Cir. 1976).

Conclusion on Factor 4: This factor is either inapplicable (because the parties already compete directly in the same product category) or strongly favors MCB (because any remaining gaps are within MCB's natural zone of expansion). In either case, this factor weighs in MCB's favor.

E. Factor 5: Actual Confusion

The fifth Polaroid factor asks whether there is evidence that consumers have actually been confused by the junior user's mark. Evidence of actual confusion is considered "strong evidence" in support of a likelihood-of-confusion finding. See Mobil Oil Corp., 818 F.2d at 260; Lois Sportswear, 799 F.2d at 875. However, a plaintiff is not required to prove actual confusion in order to prevail on a likelihood-of-confusion claim — the Lanham Act requires only a showing that confusion is likely, not that it has already occurred. See Virgin Enters. Ltd. v. Nawab, 335 F.3d 141, 151 (2d Cir. 2003).

As of the date of this memorandum, MCB's customer service team has received reports of consumer inquiries suggesting that actual confusion between MERIDIAN CLEAN and MERIDIAN FRESH products is already occurring in the marketplace. According to preliminary reports from MCB's customer service function, consumers have contacted MCB to inquire about the MERIDIAN FRESH product line, to request product information or register complaints about products that appear to be Brindoval's MERIDIAN FRESH products, and to ask whether MERIDIAN FRESH is a new product offering from MCB. These inquiries are consistent with the type of source confusion — confusion as to the origin or sponsorship of a product — that the Lanham Act is designed to prevent.

We are in the process of documenting these instances of actual confusion through a formal compilation and plan to support our filings with a declaration from Rachel Dominguez, MCB's Vice President of Brand Management, detailing the nature, frequency, and content of these consumer inquiries. Ms. Dominguez is well-positioned to provide this testimony based on her oversight of MCB's customer service and brand management functions.

In addition, MCB has retained Lakeshore Brand Consulting LLC to conduct a formal consumer confusion survey under the direction of Dr. Elaine Furman, Ph.D., a recognized expert in consumer perception and trademark survey methodology. Dr. Furman intends to employ a Squirt-design / modified Eveready protocol, a survey methodology widely accepted by federal courts as a reliable instrument for measuring likelihood of confusion. See Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 741 (2d Cir. 1994) (discussing standards for admissibility of survey evidence in trademark cases). The survey is expected to be administered to a representative sample of several hundred consumers drawn from the relevant purchasing population in October 2022, with results available later this month.

Survey evidence demonstrating a statistically significant level of consumer confusion would substantially strengthen MCB's position on this factor. In the Second Circuit, confusion rates in the range of 15-20% or higher are generally considered probative, and even lower rates may be significant depending on the circumstances. See Nat'l Football League Props., Inc. v. Wichita Falls Sportswear, Inc., 532 F. Supp. 651, 662 (W.D. Wash. 1982).

Conclusion on Factor 5: Preliminary anecdotal evidence of actual consumer confusion exists, and formal quantitative survey evidence is forthcoming. This factor is at minimum neutral as of the date of this memorandum and is likely to favor MCB once the consumer confusion survey results are obtained and documented.

F. Factor 6: Defendant's Good Faith (or Lack Thereof) in Adopting the Mark

The sixth Polaroid factor examines the junior user's intent in adopting its mark. Evidence that the defendant adopted its mark with knowledge of the senior user's mark and with the intent to capitalize on the senior user's goodwill is "strong evidence" of likelihood of confusion — the reasoning being that a deliberate copyist is presumed to have succeeded in its goal. See Mobil Oil Corp., 818 F.2d at 259 ("[T]here is a presumption that it achieved its purpose, namely, to cause confusion."); My Other Bag, Inc. v. Louis Vuitton Malletier, 156 F. Supp. 3d 425, 440 (S.D.N.Y. 2016). Conversely, innocent adoption may weigh in the defendant's favor, though it does not preclude a finding of confusion. The relevant inquiry is not merely whether the defendant subjectively intended to confuse consumers, but whether the defendant adopted its mark with knowledge of the senior user's mark and failed to exercise adequate care to avoid confusion.

Several facts support a strong inference of bad faith on Brindoval's part:

Constructive Notice. MCB's three MERIDIAN marks are registered on the Principal Register of the USPTO. Under 15 U.S.C. § 1072, federal registration constitutes "constructive notice of the registrant's claim of ownership" to all parties nationwide. Brindoval is therefore legally charged with knowledge of MCB's MERIDIAN registrations, regardless of whether Brindoval or its counsel conducted a trademark clearance search prior to adopting the MERIDIAN FRESH mark. See Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 198 (3d Cir. 1990) (constructive notice imposed by federal registration is relevant to good faith analysis).

Failure to Conduct Adequate Clearance. Even setting aside the legal fiction of constructive notice, any reasonable trademark clearance search would have immediately revealed MCB's three prior registrations in the identical International Class. A basic search of the USPTO's Trademark Electronic Search System ("TESS") for the term "MERIDIAN" in International Class 3 would return MCB's registrations as direct hits. The failure to identify these registrations — or, worse, the decision to proceed despite identifying them — constitutes, at best, reckless disregard for MCB's prior rights.

Trade Dress Imitation. Brindoval's adoption of a teal-and-white color scheme and a stylized wave device that closely resemble MCB's registered wave-device logo (Reg. No. 5,589,320) goes beyond the mere selection of a similar word mark. The imitation of MCB's overall trade dress — encompassing both color palette and design elements — suggests a deliberate effort to create a product appearance that evokes MCB's established brand identity in the minds of consumers. This degree of similarity in both word mark and trade dress is difficult to attribute to coincidence. See Paddington Corp. v. Attiki Importers & Distribs., Inc., 996 F.2d 577, 586 (2d Cir. 1993) (copying of trade dress elements as evidence of intent to confuse).

Role of Key Personnel. Nathan Cho, Brindoval's Vice President of Private Label Development, oversaw the development and launch of the MERIDIAN FRESH product line. As the senior executive responsible for Brindoval's private-label strategy, Mr. Cho would reasonably be expected to be aware of leading brands in the product categories targeted for private-label development — including MCB's MERIDIAN brand, one of the most prominent national brands in the household cleaning category. Discovery in this matter should probe the extent of any trademark clearance search conducted by or on behalf of Brindoval, Mr. Cho's knowledge of MCB's MERIDIAN marks prior to the adoption of MERIDIAN FRESH, and any internal Brindoval communications relating to the selection of the MERIDIAN FRESH name and trade dress.

Refusal to Cease. Halverson McKay & Pruitt's October 10, 2022 response letter on behalf of Brindoval denied infringement but did not assert independent creation of the MERIDIAN FRESH name, did not claim lack of awareness of MCB's marks, and did not offer any explanation for the striking similarity in trade dress between MERIDIAN FRESH and MCB's registered wave-device logo. The absence of any substantive defense on these points is notable and suggests that Brindoval may have difficulty articulating a good-faith basis for its adoption of the mark.

Conclusion on Factor 6: Strong circumstantial evidence supports an inference that Brindoval adopted the MERIDIAN FRESH mark with knowledge of MCB's prior rights and with the intent (or at minimum, reckless disregard) to trade on MCB's established goodwill. This factor favors MCB.

G. Factor 7: Quality of Defendant's Products

The seventh Polaroid factor considers the quality of the defendant's products. This factor operates in a somewhat counterintuitive manner: it favors the plaintiff regardless of whether the defendant's products are of inferior or comparable quality.

If Brindoval's MERIDIAN FRESH products are of inferior quality to MCB's MERIDIAN products, then consumer confusion would directly harm MCB's reputation and goodwill, as consumers who purchase Brindoval's lower-quality products under the mistaken belief that they are MCB products (or affiliated with MCB) would associate the poor experience with MCB's MERIDIAN brand. This type of reputational harm is precisely what trademark law is designed to prevent.

Conversely, if Brindoval's MERIDIAN FRESH products are of comparable or even superior quality to MCB's products, confusion is nonetheless actionable because the fundamental injury is MCB's loss of control over the quality of goods bearing its brand and the consumer experience associated with the MERIDIAN name. As the Second Circuit has recognized, "even if the goods are of high quality, the plaintiff 'has a right not to have the reputation of its goods imperiled by the entry of goods of the same class which the public might attribute to the plaintiff.'" Lois Sportswear, 799 F.2d at 875 (quoting Scarves by Vera, 544 F.2d at 1172-73). The trademark owner has the right to control the nature and quality of goods sold under its mark, and that right is undermined whenever a third party uses a confusingly similar mark, regardless of product quality.

We have not yet conducted a comprehensive quality comparison of Brindoval's MERIDIAN FRESH products against MCB's MERIDIAN products. Should such a comparison become relevant in the litigation, we may consider retaining an independent testing laboratory to evaluate product performance. However, for purposes of the Polaroid analysis, this factor supports MCB's position irrespective of the outcome of any quality comparison.

Conclusion on Factor 7: Whether Brindoval's products are of inferior or comparable quality, the existence of consumer confusion deprives MCB of control over its brand identity and reputation. This factor is neutral to slightly favoring MCB regardless of Brindoval's product quality.

H. Factor 8: Sophistication of Consumers

The eighth and final Polaroid factor examines the sophistication of the relevant consumers. Where consumers exercise a high degree of care in making purchasing decisions — as is typical for expensive, specialized, or professional-grade products — the likelihood of confusion is diminished because sophisticated buyers are more likely to distinguish between similar marks. Conversely, where consumers exercise a low degree of care — as is typical for low-cost, routine, everyday purchases — the likelihood of confusion is enhanced. See McGregor-Doniger, 599 F.2d at 1137; Playtex Prods., Inc. v. Georgia-Pacific Corp., 390 F.3d 158, 166 (2d Cir. 2004).

Household cleaning products are classic examples of low-cost consumer goods. MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products are typically priced between approximately $3 and $12 per unit — price points at which consumers are unlikely to invest significant time or attention in evaluating source identification before making a purchase. The purchase of household cleaning products is a routine, habitual, and often impulse-driven activity. Consumers frequently select cleaning products quickly from crowded retail shelves, relying primarily on visual cues such as brand name, packaging color, and design elements — precisely the dimensions on which MCB's marks and Brindoval's MERIDIAN FRESH mark are most similar.

The low degree of consumer sophistication characteristic of this product category stands in sharp contrast to cases involving expensive, specialized goods — such as industrial machinery, medical devices, or luxury automobiles — where courts have found that the heightened care exercised by purchasers reduces the likelihood of confusion. See, e.g., Astra Pharm. Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1208 (1st Cir. 1983); Estée Lauder Inc. v. The Gap, Inc., 108 F.3d 1503, 1513 (2d Cir. 1997). No such heightened care is present in the household cleaning product market.

Conclusion on Factor 8: The relevant consumers are purchasers of low-cost, routine household cleaning products who exercise a low degree of purchasing care, increasing the likelihood of confusion. This factor favors MCB.

V. Trade Dress Infringement Analysis

In addition to its word-mark infringement claims, MCB has a strong basis for asserting a trade dress infringement claim against Brindoval under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Trade dress encompasses the "total image and overall appearance" of a product, including features such as size, shape, color, color combinations, texture, graphics, and the arrangement of these elements on the product packaging. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765 n.1 (1992); Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999 (2d Cir. 1997).

Brindoval's MERIDIAN FRESH product packaging incorporates at least two elements that are confusingly similar to, and appear to be derived from, MCB's established trade dress:

1. Teal-and-White Color Scheme. MCB's MERIDIAN product packaging has consistently featured a distinctive teal-and-white color palette since the brand's launch in approximately 2011. This color scheme has become closely associated with the MERIDIAN brand through over a decade of continuous use and substantial advertising investment. Brindoval's MERIDIAN FRESH packaging employs a nearly identical teal-and-white color combination, creating an immediate visual association with MCB's products.

2. Stylized Wave Device. MCB's registered stylized logo (U.S. Reg. No. 5,589,320) features a proprietary wave design device rendered in teal on a white background. This wave device is a prominent element of MCB's product packaging and brand identity. Brindoval's MERIDIAN FRESH packaging incorporates a stylized wave device that is strikingly similar in form, scale, color, and placement to MCB's registered design. The degree of similarity strongly suggests that Brindoval's design was derived from, or at minimum heavily influenced by, MCB's preexisting design.

To prevail on a trade dress infringement claim under Section 43(a), MCB must demonstrate that (1) the claimed trade dress is distinctive — either inherently or through acquired secondary meaning — and (2) the defendant's imitation of the trade dress creates a likelihood of confusion among consumers. See Two Pesos, 505 U.S. at 769-70; Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 378 (2d Cir. 1997).

MCB is well-positioned on both elements. With respect to distinctiveness, MCB's federal registration of the stylized wave-device logo (Reg. No. 5,589,320) provides strong evidentiary support. While the registration itself is for a mark rather than trade dress per se, the underlying design is a central component of MCB's overall trade dress, and its registration demonstrates that the USPTO found the design to be distinctive. Moreover, over eleven years of continuous use and $47.2 million in cumulative advertising expenditures provide ample evidence that MCB's teal-and-white-with-wave-device trade dress has acquired secondary meaning among consumers of household cleaning products.

With respect to likelihood of confusion, the analysis under the Polaroid factors set forth above applies equally to the trade dress claim, and the conclusions reached therein — that the parties' products are identical, the marks and trade dress are highly similar, and consumers exercise a low degree of purchasing care — all support a finding that Brindoval's imitation of MCB's trade dress creates a likelihood of confusion.

Importantly, the combination of a confusingly similar word mark with confusingly similar trade dress magnifies the overall likelihood of confusion beyond what either element would create in isolation. A consumer encountering a product bearing the name "MERIDIAN FRESH" in teal-and-white packaging with a wave device will be confronted with multiple, mutually reinforcing signals suggesting that the product originates from or is affiliated with MCB. The cumulative effect of these similarities is substantially more confusing than any single element alone.

VI. State Law Dilution Claim — New York General Business Law § 360-l

In addition to its federal claims, MCB has a viable basis for asserting a trademark dilution claim under New York General Business Law § 360-l, which provides:

"Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services."

To state a dilution claim under Section 360-l, MCB must demonstrate: (1) that it owns a mark possessing distinctive quality, and (2) that the defendant's use creates a likelihood of dilution — either by blurring (weakening the mark's source-identifying power through unauthorized use on unrelated goods or services) or by tarnishment (harming the mark's reputation through association with inferior or unsavory goods or services). See Allied Maint. Corp. v. Allied Mech. Trades, Inc., 42 N.Y.2d 538, 543 (1977); Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 42 (2d Cir. 1994).

Distinctive Quality. MCB's MERIDIAN mark, with over a decade of continuous nationwide use, approximately $94.5 million in annual revenue attributable to the MERIDIAN cleaning line, $47.2 million in cumulative advertising expenditures, and three federal registrations (including one that has achieved incontestable status), possesses significant distinctive quality. The mark is arbitrary as applied to cleaning products and has acquired substantial secondary meaning through extensive commercial use.

Likelihood of Dilution by Blurring. Brindoval's use of MERIDIAN FRESH in connection with directly competing cleaning products blurs the distinctiveness of the MERIDIAN mark by weakening its unique association with MCB. When multiple sources use the same or a confusingly similar mark, the mark's ability to serve as an exclusive identifier of a single source is diminished — even if consumers are not actually confused as to origin. See Mead Data Cent., Inc. v. Crowne Albany Industries, 875 F.2d 1026, 1031 (2d Cir. 1989). Brindoval's use of the MERIDIAN name on competing products threatens to erode the singularity of MCB's brand identity.

Comparison with Federal Dilution Statute. It is worth noting that unlike the federal dilution statute, 15 U.S.C. § 1125(c), which requires the plaintiff's mark to be "famous" — a high threshold that requires widespread recognition among the general consuming public of the United States — New York's dilution statute does not impose a fame requirement. Section 360-l requires only that the mark possess "distinctive quality," a lower standard that MCB's MERIDIAN mark clearly satisfies. See Deere & Co., 41 F.3d at 42 (distinguishing the "famous mark" requirement of the federal statute from the "distinctive quality" requirement of New York law). This distinction makes the state dilution claim a valuable supplement to MCB's federal infringement claims, particularly if there is any question as to whether the MERIDIAN mark meets the demanding fame threshold of the federal statute.

VII. Summary of Factor-by-Factor Conclusions

The following table summarizes the analysis of each Polaroid factor and its directional impact on the overall likelihood-of-confusion inquiry:

Overall Assessment: Six of eight Polaroid factors favor MCB, and the three most critical factors — strength of the mark, similarity of the marks, and proximity of the products — all strongly favor MCB. The remaining two factors (actual confusion and product quality) are, at worst, neutral and are likely to move further in MCB's favor as the consumer confusion survey is completed and documented. On balance, MCB has a strong likelihood-of-confusion claim under the Polaroid test, and the overall weight of the analysis is decidedly in MCB's favor. These conclusions are further reinforced by the trade dress infringement and state-law dilution analyses set forth in Sections V and VI above.

VIII. Recommendations

Based on the foregoing analysis, I respectfully recommend the following course of action:

1. TTAB Opposition. Proceed with filing the Notice of Opposition before the Trademark Trial and Appeal Board against Brindoval's pending trademark application, U.S. Serial No. 97/412,558 (MERIDIAN FRESH, standard character, IC 3). The opposition should be filed on or before October 14, 2022, which we understand to be the deadline for timely filing (or, alternatively, we should file a request for extension of time to oppose to preserve MCB's rights). The opposition should assert a likelihood of confusion with MCB's three prior registered marks under Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d), and should seek to block registration of the MERIDIAN FRESH mark on the Principal Register.

2. Federal Court Complaint. Proceed with filing a federal complaint in the United States District Court for the Southern District of New York, asserting the following claims:

a. Trademark infringement under 15 U.S.C. § 1114(1) (Section 32(1) of the Lanham Act) based on Brindoval's unauthorized use of a mark confusingly similar to MCB's federally registered MERIDIAN and MERIDIAN CLEAN marks;

b. Unfair competition and false designation of origin under 15 U.S.C. § 1125(a) (Section 43(a) of the Lanham Act) based on both word-mark infringement and trade dress infringement;

c. Trademark dilution under New York General Business Law § 360-l based on the likelihood that Brindoval's use of MERIDIAN FRESH will dilute the distinctive quality of MCB's MERIDIAN mark.

3. Preliminary Injunction. Consider seeking a preliminary injunction at an appropriate time, particularly as to the trade-dress elements of Brindoval's MERIDIAN FRESH packaging (the teal-and-white color scheme and stylized wave device), where the case for irreparable harm is strongest and the visual similarity is most egregious. The trade dress elements represent the most objectively demonstrable copying, and a motion directed at these elements may be more amenable to early injunctive relief than a motion directed solely at the word mark. We should evaluate timing for this motion in light of the availability of survey evidence and the Dominguez declaration.

4. Consumer Confusion Survey. Await and integrate the results from Dr. Elaine Furman's consumer confusion survey, being conducted by Lakeshore Brand Consulting LLC, to bolster the actual confusion factor (Factor 5) before or concurrent with any preliminary injunction motion. Dr. Furman's survey results are expected later in October 2022. Depending on the survey results, we may wish to file the preliminary injunction motion shortly after receipt of the survey report to present the strongest possible evidentiary showing.

5. Dominguez Declaration. Recommend that Rachel Dominguez, MCB's Vice President of Brand Management, prepare a comprehensive compilation of any customer complaints, inquiries, or communications reflecting actual confusion between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products. This compilation should be organized chronologically and should preserve the original communications (emails, customer service logs, social media messages, etc.) to the extent available. Ms. Dominguez should be prepared to execute a declaration attesting to these instances of actual confusion for use in support of MCB's filings.

6. Evidence Preservation and discovery Planning. Continue to gather and preserve evidence of Brindoval's knowledge of MCB's marks and the circumstances surrounding Brindoval's adoption of the MERIDIAN FRESH mark. In particular, discovery in this matter should target:

a. Any trademark clearance search conducted by or on behalf of Brindoval prior to the adoption of MERIDIAN FRESH, including communications with outside counsel;

b. Internal Brindoval communications (emails, memoranda, presentations) relating to the selection of the MERIDIAN FRESH name, the developme

PRIVILEGED AND CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the use of the addressee and authorized personnel of Calderwood & Harkness LLP and Meridian Consumer Brands LLC. Any unauthorized disclosure, distribution, or copying of this memorandum is strictly prohibited.
MEMORANDUM
Date: October 3, 2022
From: Christy Bauer, Lead Associate, intellectual Property, Calderwood & Harkness LLP
To: Alan Ngo, Responsible Partner, intellectual Property, Calderwood & Harkness LLP
Re: Trademark Strength and Likelihood of Confusion Analysis — Meridian Consumer Brands LLC v. Brindoval Home Goods Inc.
Matter No.: 1011-00003
Billing Code: 11470-001
Client: Meridian Consumer Brands LLC
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I. Executive Summary
You have asked me to assess the strength of the trademark portfolio held by our client, Meridian Consumer Brands LLC ("MCB"), and to evaluate the likelihood of confusion between MCB's registered marks and the "MERIDIAN FRESH" mark recently adopted and used by Brindoval Home Goods Inc. ("Brindoval") in connection with a competing line of household cleaning products. This memorandum applies the eight-factor likelihood-of-confusion test articulated by the Second Circuit in Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492 (2d Cir. 1961), which remains the governing framework for trademark infringement claims brought in the Southern District of New York and before the Trademark Trial and Appeal Board ("TTAB") of the United States Patent and Trademark Office ("USPTO").
Based on my analysis, as set forth in detail below, all eight Polaroid factors, taken individually and in the aggregate, strongly favor a finding of likelihood of confusion between MCB's MERIDIAN and MERIDIAN CLEAN marks and Brindoval's MERIDIAN FRESH mark. MCB's MERIDIAN mark is inherently distinctive — arbitrary as applied to cleaning preparations — and has acquired substantial commercial strength through over eleven years of continuous nationwide use, approximately $94.5 million in fiscal year 2022 cleaning-line revenue, and cumulative advertising expenditures exceeding $47 million. Brindoval's adoption and use of MERIDIAN FRESH for directly competing household cleaning products in International Class 3, coupled with packaging that closely mimics MCB's registered trade dress, creates a high probability that consumers will be confused as to the source, sponsorship, or affiliation of Brindoval's products.
It is my recommendation that MCB proceed with both (1) the filing of a Notice of Opposition before the TTAB to block registration of Brindoval's pending application, U.S. Serial No. 97/412,558, and (2) the filing of a federal complaint in the United States District Court for the Southern District of New York asserting claims under Sections 32(1) and 43(a) of the Lanham Act, 15 U.S.C. §§ 1114(1) and 1125(a), as well as a state-law dilution claim under New York General Business Law § 360-l. The merits of MCB's claims are strong, and we should be prepared to move for preliminary injunctive relief at an appropriate time.
II. Background and Relevant Facts
A. The Client — Meridian Consumer Brands LLC
Meridian Consumer Brands LLC is a Delaware limited liability company headquartered at 450 Park Avenue South, 14th Floor, New York, New York 10016. MCB is a consumer packaged goods company that designs, manufactures, markets, and distributes products across three principal product lines: household cleaning products, personal care products, and home fragrance products. MCB's products are distributed through a broad network of retail channels, including major national grocery chains, warehouse club stores, mass-market retailers, and e-commerce platforms, reaching consumers in all fifty states and the District of Columbia.
For the fiscal year ended December 31, 2022, MCB reported total revenue of approximately $387 million, reflecting steady year-over-year growth since its founding. MCB's household cleaning product line, sold under the MERIDIAN family of marks, constitutes the company's flagship brand and its largest revenue-generating segment.
MCB is a portfolio company of Waypoint Capital Partners LLC, a Delaware limited liability company and mid-market private equity firm with offices in New York and Chicago. Waypoint acquired MCB in 2019 in a transaction valued at approximately $625 million, a valuation that reflected, in significant part, the substantial goodwill and brand equity associated with MCB's trademark portfolio, including the MERIDIAN marks at issue in this matter.
MCB's management team includes Sandra Kwan, Chief Executive Officer; Thomas R. Hennessy, General Counsel; and Rachel Dominguez, Vice President of Brand Management. Mr. Hennessy and Ms. Dominguez serve as MCB's primary client contacts for this matter.
B. MCB's Trademark Portfolio
MCB owns a portfolio of three federal trademark registrations covering the MERIDIAN brand as used in connection with household cleaning products, all of which are in good standing with the USPTO:
1.  U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark). Registered August 14, 2012, for goods in International Class 3, specifically: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. This registration is based on first use in commerce dating to approximately 2011. The registration has been maintained through timely filing of all required affidavits and renewal documents and is now incontestable under 15 U.S.C. § 1065.
2.  U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark). Registered October 18, 2016, for goods in International Class 3, specifically: cleaning preparations, namely, all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. This registration extends the MERIDIAN family of marks to include the composite mark MERIDIAN CLEAN and has been continuously maintained.
3.  U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo with wave device). Registered July 10, 2018, for goods in International Class 3. This registration covers the MERIDIAN word mark presented in a distinctive stylized format accompanied by a proprietary wave design device. The wave device is rendered in teal on a white background and has become a recognizable element of MCB's brand identity and product packaging.
MCB has used its MERIDIAN marks continuously in interstate commerce since approximately 2011, representing over eleven years of uninterrupted commercial activity as of the date of this memorandum. MCB's products bearing the MERIDIAN marks are sold in thousands of retail locations and through multiple e-commerce platforms nationwide.
For the fiscal year ended December 31, 2022, MCB's MERIDIAN-branded cleaning product line generated revenue of approximately $94.5 million, representing approximately 24.4% of MCB's total revenue of $387 million. The MERIDIAN cleaning line has been MCB's single most important brand asset since the company's inception.
MCB has invested heavily in advertising and promoting the MERIDIAN cleaning product line. From 2011 through 2022, MCB's cumulative advertising and promotional expenditures attributable to the MERIDIAN cleaning brand totaled approximately $47.2 million. This figure reflects an average annual advertising spend of approximately $3.93 million over the twelve-year period and encompasses expenditures across television, digital media, print, in-store promotions, and cooperative advertising with retail partners. MCB's marketing efforts have generated significant consumer awareness of the MERIDIAN brand, as further discussed in the commercial strength analysis in Section IV.A.2 below.
C. The Opposing Party — Brindoval Home Goods Inc.
Brindoval Home Goods Inc. is a Minnesota corporation headquartered at 7200 France Avenue South, Suite 300, Edina, Minnesota 55435. Brindoval operates as a regional big-box home goods retailer, maintaining a network of 148 retail stores across twelve states in the Midwest and Mountain West regions. Brindoval also operates a growing e-commerce platform accessible at www.crestviewhomegoods.com, through which it sells products to consumers nationwide.
For the fiscal year ended December 31, 2022, Brindoval reported total revenue of approximately $2.1 billion, making it a significant regional retail competitor. Brindoval's business has historically focused on the retail sale of home furnishings, décor, kitchenware, and related products manufactured by third parties. Beginning in 2021, however, Brindoval embarked on a strategic initiative to develop and launch private-label product lines, including household consumables, under its own proprietary brand names.
Brindoval's management team includes Douglas P. Lindstrom, Chief Executive Officer; Karen A. Whitfield, General Counsel; and Nathan Cho, Vice President of Private Label Development. Mr. Cho oversaw the development and launch of the MERIDIAN FRESH product line at issue in this matter.
Brindoval is represented in this matter by the law firm of Halverson McKay & Pruitt LLP, with Gregory T. Halverson serving as lead partner. Halverson McKay & Pruitt is located at 225 South Sixth Street, Suite 4200, Minneapolis, Minnesota 55402.
D. The Infringing Mark and Products
In or about July 2022, Brindoval launched a private-label line of household cleaning products under the mark "MERIDIAN FRESH." The MERIDIAN FRESH product line includes the following specific products: all-purpose spray cleaner, glass cleaner, disinfecting wipes, and dish soap. These products are offered for sale in all 148 of Brindoval's retail store locations and through Brindoval's e-commerce website, making them available to consumers both regionally and, through online sales, nationally.
Prior to the product launch, Brindoval filed a federal trademark application with the USPTO: U.S. Serial No. 97/412,558 — MERIDIAN FRESH (standard character mark), filed May 12, 2022, seeking registration in International Class 3 for cleaning preparations. The application was examined and published for opposition in the Official Gazette on September 6, 2022. The thirty-day opposition period is currently running, and MCB's deadline to file a Notice of Opposition (or request an extension of time) is approaching.
Of particular concern is the packaging and trade dress adopted by Brindoval for its MERIDIAN FRESH products. The MERIDIAN FRESH packaging prominently features a teal-and-white color scheme that closely mirrors the color palette long associated with MCB's MERIDIAN product line. Additionally, and most troublingly, the MERIDIAN FRESH packaging incorporates a stylized wave device that is strikingly similar in form, placement, and visual impression to MCB's registered wave-device logo covered by U.S. Registration No. 5,589,320. A side-by-side comparison of the two designs reveals a degree of similarity that goes well beyond coincidence and raises serious questions regarding Brindoval's intent in developing its brand identity for MERIDIAN FRESH.
Based on publicly available financial information and industry estimates, Brindoval's MERIDIAN FRESH product line generated gross revenue of approximately $6.8 million during the first five months of sales (July through November 2022). Annualized, this figure projects to approximately $16.32 million in yearly revenue — a figure that, while modest relative to Brindoval's overall business, is commercially significant and represents revenue that is being generated, at least in part, through exploitation of the goodwill and consumer recognition associated with MCB's MERIDIAN marks.
E. Procedural Posture
The following summarizes the procedural history of this matter to date:
•  May 12, 2022: Brindoval filed U.S. trademark application Serial No. 97/412,558 for MERIDIAN FRESH (standard character mark, IC 3).
•  July 2022: Brindoval commenced sales of MERIDIAN FRESH products in retail stores and online.
•  September 6, 2022: The MERIDIAN FRESH application was published for opposition in the USPTO's Official Gazette.
•  September 26, 2022: Calderwood & Harkness LLP, on behalf of MCB, transmitted a cease-and-desist letter to Brindoval's General Counsel, Karen A. Whitfield, demanding that Brindoval immediately cease all use of the MERIDIAN FRESH mark and related trade dress and withdraw its pending trademark application.
•  October 10, 2022: Halverson McKay & Pruitt LLP responded on behalf of Brindoval, denying that Brindoval's use of MERIDIAN FRESH constitutes infringement of any of MCB's trademark rights and declining to cease use or withdraw the application. The response letter did not provide any substantive analysis supporting Brindoval's position and did not address the trade dress similarities.
This memorandum is being prepared in anticipation of and in connection with the following planned legal actions:
1.  TTAB Opposition: MCB intends to file a Notice of Opposition before the Trademark Trial and Appeal Board against Brindoval's pending application, Serial No. 97/412,558, on the grounds of likelihood of confusion with MCB's prior registered marks, pursuant to Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d).
2.  Federal Court Action: MCB intends to file a complaint in the United States District Court for the Southern District of New York, asserting claims for trademark infringement under 15 U.S.C. § 1114(1), unfair competition and false designation of origin under 15 U.S.C. § 1125(a), and trademark dilution under New York General Business Law § 360-l.
In support of these proceedings, MCB has retained Lakeshore Brand Consulting LLC to conduct a formal consumer confusion survey. The survey will be directed by Dr. Elaine Furman, Ph.D., a recognized expert in consumer behavior and trademark survey methodology. Dr. Furman intends to employ a Squirt-design / modified Eveready protocol, widely accepted by federal courts as a reliable methodology for measuring likelihood of confusion. The survey is expected to be conducted in October 2022 using a sample of several hundred consumers drawn from the relevant purchasing population. Results are expected later this month and will be incorporated into MCB's evidentiary presentation.
III. Legal Framework — The *Polaroid* Test
In the Second Circuit, the question of whether a defendant's use of a mark creates a likelihood of confusion with the plaintiff's mark is assessed under the eight-factor balancing test articulated in Polaroid Corp. v. Polaroid Electronics Corp., 287 F.2d 492 (2d Cir. 1961). The Polaroid test has been consistently applied by the Second Circuit and courts within its jurisdiction for over six decades and remains the controlling analytical framework for trademark infringement claims under both Section 32(1) and Section 43(a) of the Lanham Act. See, e.g., Starbucks Corp. v. Wolfe's Borough Coffee, Inc., 588 F.3d 97, 115 (2d Cir. 2009); Gruner + Jahr USA Publ'g v. Meredith Corp., 991 F.2d 1072, 1077 (2d Cir. 1993); Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 799 F.2d 867, 871 (2d Cir. 1986).
The eight Polaroid factors are:
1.  The strength of the senior user's mark;
2.  The degree of similarity between the two marks;
3.  The proximity of the products or services;
4.  The likelihood that the senior user will bridge the gap (i.e., expand into the junior user's market);
5.  Actual confusion between the marks;
6.  The defendant's good faith (or lack thereof) in adopting its mark;
7.  The quality of the defendant's products or services; and
8.  The sophistication of the relevant consumers.
It is well-established that no single Polaroid factor is dispositive and that the analysis is not a mechanical counting exercise but rather a qualitative balancing test in which the court must weigh each factor, individually and in the context of the others, to arrive at an overall assessment of whether consumer confusion is likely. See Brennan's, Inc. v. Brennan's Rest., LLC, 360 F.3d 125, 130 (2d Cir. 2004); Lois Sportswear, 799 F.2d at 872. The relative weight to be accorded each factor may vary depending on the circumstances of the particular case.
Notably, in cases involving directly competing goods — as is the case here, where both parties sell household cleaning preparations in International Class 3 — the factors relating to the strength of the mark, the similarity of the marks, the proximity of the products, and the defendant's good faith (factors one through three and factor six) tend to assume the greatest significance. See Arrow Fastener Co. v. Stanley Fastening Sys., L.P., 59 F.3d 384, 396 (2d Cir. 1995); Mobil Oil Corp. v. Pegasus Petroleum Corp., 818 F.2d 254, 258 (2d Cir. 1987). Where the products are identical, even a lesser degree of mark similarity may suffice to establish likelihood of confusion. Conversely, where, as here, both the marks and the products are highly similar, the case for likelihood of confusion is particularly compelling.
IV. Analysis of Each *Polaroid* Factor
A. Factor 1: Strength of MCB's Marks
The strength of the senior user's mark is the first and often most important factor in the Polaroid analysis. A strong mark is one that is highly distinctive — either inherently or through acquired distinctiveness (secondary meaning) — and is therefore entitled to a broad scope of protection against confusingly similar marks. The strength inquiry involves two components: (1) the inherent or conceptual strength of the mark on the Abercrombie spectrum, and (2) the commercial strength of the mark as demonstrated by marketplace recognition and fame. See Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 384 (2d Cir. 2005); The Sports Auth., Inc. v. Prime Hosp. Corp., 89 F.3d 955, 960 (2d Cir. 1996).
1. Inherent Distinctiveness
Under the well-established Abercrombie classification system, trademarks are categorized, in ascending order of inherent distinctiveness, as: (1) generic, (2) descriptive, (3) suggestive, (4) arbitrary, or (5) fanciful. Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 (2d Cir. 1976). Suggestive, arbitrary, and fanciful marks are considered inherently distinctive and are entitled to protection without proof of secondary meaning. Arbitrary and fanciful marks receive the broadest scope of protection.
MCB's principal mark, MERIDIAN, is properly classified as an arbitrary mark as applied to cleaning products. The word "meridian" is an English word with established dictionary meanings — it refers to a great circle of longitude on the Earth's surface, the highest point or culmination of something (as in "the meridian of one's career"), or an acupuncture pathway in traditional Chinese medicine. None of these meanings bears any descriptive, suggestive, or other relationship to the nature, characteristics, function, or qualities of cleaning preparations. The word "MERIDIAN" conveys no information whatsoever about cleaning products to the consumer. It is, in the parlance of trademark law, "a known word used in an unexpected or uncommon way" — the hallmark of an arbitrary mark. See Abercrombie, 537 F.2d at 11 n.12; Star Indus., 412 F.3d at 385.
Arbitrary marks occupy the second-highest tier on the Abercrombie spectrum, below only fanciful marks (i.e., coined or invented words such as KODAK or XEROX). The Second Circuit has consistently held that arbitrary marks are "inherently strong" and "entitled to broad protection." See Streetwise Maps, Inc. v. VanDam, Inc., 159 F.3d 739, 743-44 (2d Cir. 1998).
MCB's secondary mark, MERIDIAN CLEAN, is, at a minimum, suggestive as a composite mark. While the word "CLEAN," standing alone, is descriptive when applied to cleaning products, the combination of "MERIDIAN" (an arbitrary term) and "CLEAN" creates a composite mark that requires an exercise of imagination or a "mental leap" on the part of the consumer to connect the mark to the underlying goods. The mark MERIDIAN CLEAN does not immediately and directly describe the nature, characteristics, or qualities of the goods; rather, it only indirectly suggests an association with cleanliness through the word "CLEAN," while the dominant element "MERIDIAN" provides the primary source-identifying function. Suggestive marks are inherently distinctive and protectable without proof of secondary meaning. See Abercrombie, 537 F.2d at 10-11.
Importantly, all three of MCB's MERIDIAN marks are registered on the Principal Register of the USPTO. Registration on the Principal Register creates a statutory presumption of validity and distinctiveness under 15 U.S.C. § 1057(b), which shifts the burden to the defendant to rebut the presumption. Moreover, MCB's first registration (Reg. No. 4,218,506) has now achieved incontestable status under 15 U.S.C. § 1065, further strengthening MCB's position. An incontestable registration constitutes "conclusive evidence" of the registrant's exclusive right to use the mark in commerce in connection with the specified goods, subject only to the limited defenses enumerated in 15 U.S.C. § 1115(b). See Park 'N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 196 (1985).
2. Commercial Strength / Acquired Distinctiveness
Beyond inherent distinctiveness, the commercial strength of MCB's MERIDIAN marks in the marketplace provides additional, powerful support for a finding of strength under the first Polaroid factor. Commercial strength is established through evidence of extensive use, advertising, sales volume, and consumer recognition. See Lois Sportswear, 799 F.2d at 873-74.
The following facts demonstrate the significant commercial strength of MCB's MERIDIAN marks:
•  Duration of Use: MCB has used the MERIDIAN mark in interstate commerce continuously since approximately 2011 — a period spanning over eleven years as of the date of this memorandum. The Second Circuit has recognized that long, continuous use of a mark is probative of its commercial strength. See Savin Corp. v. Savin Grp., 391 F.3d 439, 457 (2d Cir. 2004).
•  Geographic Scope of Use: MCB's MERIDIAN-branded products are distributed nationwide across all fifty states and the District of Columbia, through major grocery chains, warehouse club stores, mass-market retailers, and e-commerce platforms. This breadth of distribution ensures that the MERIDIAN mark has been exposed to a vast consumer audience.
•  Sales Volume: MCB's MERIDIAN cleaning product line generated revenue of approximately $94.5 million for the fiscal year ended December 31, 2022. This figure represents approximately 24.4% of MCB's total corporate revenue of $387 million and constitutes a substantial volume of sales by any measure. Courts routinely cite annual revenue in the tens of millions of dollars as evidence of strong commercial strength. See Star Indus., 412 F.3d at 386.
•  Advertising and Promotion: MCB has made cumulative advertising and promotional expenditures of approximately $47.2 million on the MERIDIAN cleaning product line over the twelve-year period from 2011 through 2022, representing an average annual advertising spend of approximately $3.93 million. This consistent and substantial investment in brand-building activity, spanning television, digital media, print, in-store promotions, and cooperative advertising with retail partners, has generated significant consumer awareness and recognition of the MERIDIAN brand.
•  Federal Registrations: MCB holds three separate federal trademark registrations covering the MERIDIAN mark, the MERIDIAN CLEAN mark, and the MERIDIAN stylized logo with wave device (Reg. Nos. 4,218,506; 5,034,771; and 5,589,320, respectively). The existence of multiple federal registrations reflects both MCB's deliberate investment in protecting its brand and the USPTO's repeated determination that the MERIDIAN marks satisfy the statutory requirements for registration.
•  Corporate Valuation: MCB's parent company, Waypoint Capital Partners LLC, acquired MCB in 2019 for approximately $625 million. While the purchase price reflects the value of the entire business, the substantial premium paid is attributable in significant part to the goodwill and brand equity associated with MCB's trademark portfolio, including and especially the MERIDIAN marks. This acquisition valuation provides indirect but powerful evidence of the commercial significance and value of the MERIDIAN brand. See Savin Corp., 391 F.3d at 457 (considering evidence of brand valuation in assessing commercial strength).
Conclusion on Factor 1: MCB's MERIDIAN marks possess both strong inherent distinctiveness (as arbitrary marks on the Abercrombie spectrum) and significant acquired commercial strength (as demonstrated by over eleven years of continuous nationwide use, approximately $94.5 million in annual revenue, $47.2 million in cumulative advertising expenditures, three federal registrations including one incontestable registration, and a corporate acquisition valuation of $625 million). This factor weighs heavily in MCB's favor.
B. Factor 2: Similarity of the Marks
The second Polaroid factor requires an assessment of the similarity of the marks in terms of their overall impression, taking into account appearance (sight), sound, and meaning. See Gruner + Jahr, 991 F.2d at 1078. The critical inquiry is not whether the marks can be distinguished when placed side by side, but rather "whether the impression which the infringing mark is likely to make on the general populace will be similar to the impression made by the original mark." McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126, 1133 (2d Cir. 1979). In conducting this analysis, the court considers the marks as they would be encountered by consumers in the marketplace — often imperfectly recalled from memory rather than carefully compared in a controlled setting.
1. Sight.  The visual comparison between MCB's marks and Brindoval's mark is striking. MCB's principal mark is MERIDIAN (standard character); its secondary mark is MERIDIAN CLEAN (standard character). Brindoval's mark is MERIDIAN FRESH (standard character). The dominant element in all three marks — the four-syllable, eight-letter word "MERIDIAN" — is identical across MCB's and Brindoval's marks. The word "MERIDIAN" is the first and most prominent word in each mark, and it is the element that will make the strongest impression on consumers' visual perception and memory.
The only point of visual difference between MERIDIAN CLEAN and MERIDIAN FRESH is the substitution of the word "FRESH" for the word "CLEAN." Both "CLEAN" and "FRESH" are common, single-syllable English words that function as descriptive or laudatory modifiers in the context of cleaning products. A consumer encountering "MERIDIAN FRESH" on a store shelf would reasonably perceive it as a variant, line extension, or reformulation of the "MERIDIAN CLEAN" product line — not as a product from a different source. The Second Circuit has consistently held that the addition of a descriptive or generic term to a dominant element does not create a sufficiently distinct commercial impression to avoid confusion. See Dreyfus Fund Inc. v. Royal Bank of Can., 525 F. Supp. 1108, 1115 (S.D.N.Y. 1981); In re Chatam Int'l, Inc., 380 F.3d 1340, 1343 (Fed. Cir. 2004) (in TTAB context).
Compounding the visual similarity of the word marks, Brindoval's MERIDIAN FRESH product packaging employs a teal-and-white color scheme and a stylized wave device that are strikingly similar to MCB's registered stylized logo with wave device (U.S. Reg. No. 5,589,320). The combined effect of an identical dominant word element, a descriptive modifier of the same type, and closely imitative trade dress creates an overall visual impression that is highly likely to cause consumer confusion.
2. Sound.  The phonetic similarity between the marks further supports a finding of confusion. Both MCB's marks and Brindoval's mark begin with and are dominated by the four-syllable word "MERIDIAN" — pronounced identically in both — /mə-ˈri-dē-ən/. This is the longest and most distinctive phonetic element in each mark and the element most likely to be remembered and verbalized by consumers.
The addition of the monosyllabic word "FRESH" at the end of Brindoval's mark does not materially alter the aural impression. When consumers refer to these products in casual conversation — for example, asking a family member to "pick up some Meridian cleaner" or telling a store associate they are "looking for the Meridian products" — the distinguishing modifier is likely to be dropped or overlooked entirely. The phonetic dominance of "MERIDIAN" in both marks renders them aurally confusingly similar.
3. Meaning / Commercial Impression
The overall commercial impression conveyed by MERIDIAN FRESH is that of a product line extension or variant of MCB's established MERIDIAN and MERIDIAN CLEAN brands. This is precisely the type of confusion that trademark law is designed to prevent. Consumers encountering MERIDIAN, MERIDIAN CLEAN, and MERIDIAN FRESH on adjacent store shelves would naturally and reasonably assume that all three products originate from the same source — that MERIDIAN FRESH is simply the latest offering from the maker of MERIDIAN CLEAN.
This assumption is reinforced by the common practice in the consumer packaged goods industry of extending established brand names through the addition of descriptive modifiers to denote product variants. Examples are legion: "Tide Original" and "Tide Fresh" (Thackeray Corporation); "Lysol Clean" and "Lysol Fresh" (Ostrander & Co.); "Clorox Clean-Up" and "Clorox Fresh Scent" (Bramwell Group). Consumers are trained by marketplace experience to view marks like MERIDIAN CLEAN and MERIDIAN FRESH as related products from a common source, not as products from different companies.
The shared word "MERIDIAN" conveys the same fundamental source-identifying meaning in both marks. That word is the element that consumers associate with MCB as the origin of the goods. The descriptive modifiers "CLEAN" and "FRESH" convey secondary meanings related to product characteristics but do not alter the source-identifying function of the dominant term.
Conclusion on Factor 2: MCB's marks and Brindoval's MERIDIAN FRESH mark are highly similar across all three dimensions of comparison — sight, sound, and meaning — with the identical dominant element "MERIDIAN" and closely imitative trade dress. This factor strongly favors MCB.
C. Factor 3: Proximity of the Products
The third Polaroid factor examines the degree of proximity or relatedness between the senior user's goods and the junior user's goods. Where the products are directly competitive, this factor weighs heavily in favor of finding a likelihood of confusion. See Mobil Oil Corp., 818 F.2d at 258; Cadbury Beverages, Inc. v. Cott Corp., 73 F.3d 474, 480 (2d Cir. 1996).
The proximity of the products in this case could not be closer. MCB's MERIDIAN and MERIDIAN CLEAN marks are registered and used in connection with cleaning preparations in International Class 3, specifically: all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaners. Brindoval's MERIDIAN FRESH mark is used in connection with cleaning preparations in International Class 3, specifically: all-purpose spray cleaner, glass cleaner, disinfecting wipes, and dish soap.
The products at issue are not merely related — they are directly competitive. Both MCB and Brindoval sell household cleaning preparations that serve the same consumer needs, in the same product category, classified under the same International Class at the USPTO. The overlap is not partial or incidental; it extends to specific product sub-categories:
•  All-purpose cleaners: MCB sells all-purpose cleaners under MERIDIAN; Brindoval sells an all-purpose spray under MERIDIAN FRESH.
•  Glass cleaners: Both MCB and Brindoval sell glass cleaners under their respective marks.
•  Disinfecting products: MCB sells disinfecting sprays under MERIDIAN; Brindoval sells disinfecting wipes under MERIDIAN FRESH.
Moreover, both parties' products are sold through overlapping distribution channels. MCB's products are available through grocery stores, club stores, mass-market retailers, and e-commerce platforms. Brindoval's MERIDIAN FRESH products are sold through Brindoval's 148 retail locations — which, as a big-box home goods retailer, are the same type of mass-market retail environment in which MCB's products are sold — as well as through Brindoval's e-commerce website, which is accessible to consumers nationwide. The result is that a consumer may encounter MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products in the same types of retail environments, if not in the same physical stores.
Courts have consistently held that where the parties' goods are identical or closely overlapping and are sold in the same channels of trade, the proximity-of-products factor weighs decisively in favor of the trademark owner. See Arrow Fastener, 59 F.3d at 396; Vitarroz Corp. v. Borden, Inc., 644 F.2d 960, 967 (2d Cir. 1981).
Conclusion on Factor 3: The products sold under MCB's marks and Brindoval's MERIDIAN FRESH mark are identical or closely overlapping, occupy the same International Class, and are sold through overlapping distribution channels. This factor weighs decisively in MCB's favor.
D. Factor 4: Likelihood That the Senior User Will Bridge the Gap
The fourth Polaroid factor considers the likelihood that the senior user will "bridge the gap" between its products and the junior user's products by expanding into the junior user's market. See Polaroid, 287 F.2d at 495. This factor is most relevant where the parties' current products or services are not identical, as it addresses whether the senior user's natural trajectory of brand expansion would bring it into direct competition with the junior user.
In the present case, this factor is effectively inapplicable because there is no gap to bridge. As discussed in Section IV.C above, MCB and Brindoval already operate in the same product category — household cleaning preparations in International Class 3 — and their product lines overlap in specific sub-categories (all-purpose cleaners, glass cleaners, disinfecting products). MCB does not need to "bridge" any gap to arrive in a market that it has occupied for over a decade.
To the limited extent that a gap may be identified — Brindoval's MERIDIAN FRESH line includes dish soap, a product that MCB does not currently sell under the MERIDIAN mark — MCB's expansion into adjacent cleaning sub-categories is both natural and foreseeable. MCB already operates across household cleaning, personal care, and home fragrance product lines. The addition of a dish soap product to the MERIDIAN cleaning line would be a logical and commercially unremarkable extension of MCB's existing brand architecture. Courts have recognized that expansion into closely related product sub-categories within the same general field constitutes a natural and foreseeable "bridge." See Scarves by Vera, Inc. v. Todo Imports Ltd., 544 F.2d 1167, 1174 (2d Cir. 1976).
Conclusion on Factor 4: This factor is either inapplicable (because the parties already compete directly in the same product category) or strongly favors MCB (because any remaining gaps are within MCB's natural zone of expansion). In either case, this factor weighs in MCB's favor.
E. Factor 5: Actual Confusion
The fifth Polaroid factor asks whether there is evidence that consumers have actually been confused by the junior user's mark. Evidence of actual confusion is considered "strong evidence" in support of a likelihood-of-confusion finding. See Mobil Oil Corp., 818 F.2d at 260; Lois Sportswear, 799 F.2d at 875. However, a plaintiff is not required to prove actual confusion in order to prevail on a likelihood-of-confusion claim — the Lanham Act requires only a showing that confusion is likely, not that it has already occurred. See Virgin Enters. Ltd. v. Nawab, 335 F.3d 141, 151 (2d Cir. 2003).
As of the date of this memorandum, MCB's customer service team has received reports of consumer inquiries suggesting that actual confusion between MERIDIAN CLEAN and MERIDIAN FRESH products is already occurring in the marketplace. According to preliminary reports from MCB's customer service function, consumers have contacted MCB to inquire about the MERIDIAN FRESH product line, to request product information or register complaints about products that appear to be Brindoval's MERIDIAN FRESH products, and to ask whether MERIDIAN FRESH is a new product offering from MCB. These inquiries are consistent with the type of source confusion — confusion as to the origin or sponsorship of a product — that the Lanham Act is designed to prevent.
We are in the process of documenting these instances of actual confusion through a formal compilation and plan to support our filings with a declaration from Rachel Dominguez, MCB's Vice President of Brand Management, detailing the nature, frequency, and content of these consumer inquiries. Ms. Dominguez is well-positioned to provide this testimony based on her oversight of MCB's customer service and brand management functions.
In addition, MCB has retained Lakeshore Brand Consulting LLC to conduct a formal consumer confusion survey under the direction of Dr. Elaine Furman, Ph.D., a recognized expert in consumer perception and trademark survey methodology. Dr. Furman intends to employ a Squirt-design / modified Eveready protocol, a survey methodology widely accepted by federal courts as a reliable instrument for measuring likelihood of confusion. See Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 741 (2d Cir. 1994) (discussing standards for admissibility of survey evidence in trademark cases). The survey is expected to be administered to a representative sample of several hundred consumers drawn from the relevant purchasing population in October 2022, with results available later this month.
Survey evidence demonstrating a statistically significant level of consumer confusion would substantially strengthen MCB's position on this factor. In the Second Circuit, confusion rates in the range of 15-20% or higher are generally considered probative, and even lower rates may be significant depending on the circumstances. See Nat'l Football League Props., Inc. v. Wichita Falls Sportswear, Inc., 532 F. Supp. 651, 662 (W.D. Wash. 1982).
Conclusion on Factor 5: Preliminary anecdotal evidence of actual consumer confusion exists, and formal quantitative survey evidence is forthcoming. This factor is at minimum neutral as of the date of this memorandum and is likely to favor MCB once the consumer confusion survey results are obtained and documented.
F. Factor 6: Defendant's Good Faith (or Lack Thereof) in Adopting the Mark
The sixth Polaroid factor examines the junior user's intent in adopting its mark. Evidence that the defendant adopted its mark with knowledge of the senior user's mark and with the intent to capitalize on the senior user's goodwill is "strong evidence" of likelihood of confusion — the reasoning being that a deliberate copyist is presumed to have succeeded in its goal. See Mobil Oil Corp., 818 F.2d at 259 ("[T]here is a presumption that it achieved its purpose, namely, to cause confusion."); My Other Bag, Inc. v. Louis Vuitton Malletier, 156 F. Supp. 3d 425, 440 (S.D.N.Y. 2016). Conversely, innocent adoption may weigh in the defendant's favor, though it does not preclude a finding of confusion. The relevant inquiry is not merely whether the defendant subjectively intended to confuse consumers, but whether the defendant adopted its mark with knowledge of the senior user's mark and failed to exercise adequate care to avoid confusion.
Several facts support a strong inference of bad faith on Brindoval's part:
Constructive Notice. MCB's three MERIDIAN marks are registered on the Principal Register of the USPTO. Under 15 U.S.C. § 1072, federal registration constitutes "constructive notice of the registrant's claim of ownership" to all parties nationwide. Brindoval is therefore legally charged with knowledge of MCB's MERIDIAN registrations, regardless of whether Brindoval or its counsel conducted a trademark clearance search prior to adopting the MERIDIAN FRESH mark. See Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 198 (3d Cir. 1990) (constructive notice imposed by federal registration is relevant to good faith analysis).
Failure to Conduct Adequate Clearance. Even setting aside the legal fiction of constructive notice, any reasonable trademark clearance search would have immediately revealed MCB's three prior registrations in the identical International Class. A basic search of the USPTO's Trademark Electronic Search System ("TESS") for the term "MERIDIAN" in International Class 3 would return MCB's registrations as direct hits. The failure to identify these registrations — or, worse, the decision to proceed despite identifying them — constitutes, at best, reckless disregard for MCB's prior rights.
Trade Dress Imitation. Brindoval's adoption of a teal-and-white color scheme and a stylized wave device that closely resemble MCB's registered wave-device logo (Reg. No. 5,589,320) goes beyond the mere selection of a similar word mark. The imitation of MCB's overall trade dress — encompassing both color palette and design elements — suggests a deliberate effort to create a product appearance that evokes MCB's established brand identity in the minds of consumers. This degree of similarity in both word mark and trade dress is difficult to attribute to coincidence. See Paddington Corp. v. Attiki Importers & Distribs., Inc., 996 F.2d 577, 586 (2d Cir. 1993) (copying of trade dress elements as evidence of intent to confuse).
Role of Key Personnel. Nathan Cho, Brindoval's Vice President of Private Label Development, oversaw the development and launch of the MERIDIAN FRESH product line. As the senior executive responsible for Brindoval's private-label strategy, Mr. Cho would reasonably be expected to be aware of leading brands in the product categories targeted for private-label development — including MCB's MERIDIAN brand, one of the most prominent national brands in the household cleaning category. Discovery in this matter should probe the extent of any trademark clearance search conducted by or on behalf of Brindoval, Mr. Cho's knowledge of MCB's MERIDIAN marks prior to the adoption of MERIDIAN FRESH, and any internal Brindoval communications relating to the selection of the MERIDIAN FRESH name and trade dress.
Refusal to Cease. Halverson McKay & Pruitt's October 10, 2022 response letter on behalf of Brindoval denied infringement but did not assert independent creation of the MERIDIAN FRESH name, did not claim lack of awareness of MCB's marks, and did not offer any explanation for the striking similarity in trade dress between MERIDIAN FRESH and MCB's registered wave-device logo. The absence of any substantive defense on these points is notable and suggests that Brindoval may have difficulty articulating a good-faith basis for its adoption of the mark.
Conclusion on Factor 6: Strong circumstantial evidence supports an inference that Brindoval adopted the MERIDIAN FRESH mark with knowledge of MCB's prior rights and with the intent (or at minimum, reckless disregard) to trade on MCB's established goodwill. This factor favors MCB.
G. Factor 7: Quality of Defendant's Products
The seventh Polaroid factor considers the quality of the defendant's products. This factor operates in a somewhat counterintuitive manner: it favors the plaintiff regardless of whether the defendant's products are of inferior or comparable quality.
If Brindoval's MERIDIAN FRESH products are of inferior quality to MCB's MERIDIAN products, then consumer confusion would directly harm MCB's reputation and goodwill, as consumers who purchase Brindoval's lower-quality products under the mistaken belief that they are MCB products (or affiliated with MCB) would associate the poor experience with MCB's MERIDIAN brand. This type of reputational harm is precisely what trademark law is designed to prevent.
Conversely, if Brindoval's MERIDIAN FRESH products are of comparable or even superior quality to MCB's products, confusion is nonetheless actionable because the fundamental injury is MCB's loss of control over the quality of goods bearing its brand and the consumer experience associated with the MERIDIAN name. As the Second Circuit has recognized, "even if the goods are of high quality, the plaintiff 'has a right not to have the reputation of its goods imperiled by the entry of goods of the same class which the public might attribute to the plaintiff.'" Lois Sportswear, 799 F.2d at 875 (quoting Scarves by Vera, 544 F.2d at 1172-73). The trademark owner has the right to control the nature and quality of goods sold under its mark, and that right is undermined whenever a third party uses a confusingly similar mark, regardless of product quality.
We have not yet conducted a comprehensive quality comparison of Brindoval's MERIDIAN FRESH products against MCB's MERIDIAN products. Should such a comparison become relevant in the litigation, we may consider retaining an independent testing laboratory to evaluate product performance. However, for purposes of the Polaroid analysis, this factor supports MCB's position irrespective of the outcome of any quality comparison.
Conclusion on Factor 7: Whether Brindoval's products are of inferior or comparable quality, the existence of consumer confusion deprives MCB of control over its brand identity and reputation. This factor is neutral to slightly favoring MCB regardless of Brindoval's product quality.
H. Factor 8: Sophistication of Consumers
The eighth and final Polaroid factor examines the sophistication of the relevant consumers. Where consumers exercise a high degree of care in making purchasing decisions — as is typical for expensive, specialized, or professional-grade products — the likelihood of confusion is diminished because sophisticated buyers are more likely to distinguish between similar marks. Conversely, where consumers exercise a low degree of care — as is typical for low-cost, routine, everyday purchases — the likelihood of confusion is enhanced. See McGregor-Doniger, 599 F.2d at 1137; Playtex Prods., Inc. v. Georgia-Pacific Corp., 390 F.3d 158, 166 (2d Cir. 2004).
Household cleaning products are classic examples of low-cost consumer goods. MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products are typically priced between approximately $3 and $12 per unit — price points at which consumers are unlikely to invest significant time or attention in evaluating source identification before making a purchase. The purchase of household cleaning products is a routine, habitual, and often impulse-driven activity. Consumers frequently select cleaning products quickly from crowded retail shelves, relying primarily on visual cues such as brand name, packaging color, and design elements — precisely the dimensions on which MCB's marks and Brindoval's MERIDIAN FRESH mark are most similar.
The low degree of consumer sophistication characteristic of this product category stands in sharp contrast to cases involving expensive, specialized goods — such as industrial machinery, medical devices, or luxury automobiles — where courts have found that the heightened care exercised by purchasers reduces the likelihood of confusion. See, e.g., Astra Pharm. Prods., Inc. v. Beckman Instruments, Inc., 718 F.2d 1201, 1208 (1st Cir. 1983); Estée Lauder Inc. v. The Gap, Inc., 108 F.3d 1503, 1513 (2d Cir. 1997). No such heightened care is present in the household cleaning product market.
Conclusion on Factor 8: The relevant consumers are purchasers of low-cost, routine household cleaning products who exercise a low degree of purchasing care, increasing the likelihood of confusion. This factor favors MCB.
V. Trade Dress Infringement Analysis
In addition to its word-mark infringement claims, MCB has a strong basis for asserting a trade dress infringement claim against Brindoval under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Trade dress encompasses the "total image and overall appearance" of a product, including features such as size, shape, color, color combinations, texture, graphics, and the arrangement of these elements on the product packaging. See Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 765 n.1 (1992); Fun-Damental Too, Ltd. v. Gemmy Indus. Corp., 111 F.3d 993, 999 (2d Cir. 1997).
Brindoval's MERIDIAN FRESH product packaging incorporates at least two elements that are confusingly similar to, and appear to be derived from, MCB's established trade dress:
1.  Teal-and-White Color Scheme. MCB's MERIDIAN product packaging has consistently featured a distinctive teal-and-white color palette since the brand's launch in approximately 2011. This color scheme has become closely associated with the MERIDIAN brand through over a decade of continuous use and substantial advertising investment. Brindoval's MERIDIAN FRESH packaging employs a nearly identical teal-and-white color combination, creating an immediate visual association with MCB's products.
2.  Stylized Wave Device. MCB's registered stylized logo (U.S. Reg. No. 5,589,320) features a proprietary wave design device rendered in teal on a white background. This wave device is a prominent element of MCB's product packaging and brand identity. Brindoval's MERIDIAN FRESH packaging incorporates a stylized wave device that is strikingly similar in form, scale, color, and placement to MCB's registered design. The degree of similarity strongly suggests that Brindoval's design was derived from, or at minimum heavily influenced by, MCB's preexisting design.
To prevail on a trade dress infringement claim under Section 43(a), MCB must demonstrate that (1) the claimed trade dress is distinctive — either inherently or through acquired secondary meaning — and (2) the defendant's imitation of the trade dress creates a likelihood of confusion among consumers. See Two Pesos, 505 U.S. at 769-70; Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 378 (2d Cir. 1997).
MCB is well-positioned on both elements. With respect to distinctiveness, MCB's federal registration of the stylized wave-device logo (Reg. No. 5,589,320) provides strong evidentiary support. While the registration itself is for a mark rather than trade dress per se, the underlying design is a central component of MCB's overall trade dress, and its registration demonstrates that the USPTO found the design to be distinctive. Moreover, over eleven years of continuous use and $47.2 million in cumulative advertising expenditures provide ample evidence that MCB's teal-and-white-with-wave-device trade dress has acquired secondary meaning among consumers of household cleaning products.
With respect to likelihood of confusion, the analysis under the Polaroid factors set forth above applies equally to the trade dress claim, and the conclusions reached therein — that the parties' products are identical, the marks and trade dress are highly similar, and consumers exercise a low degree of purchasing care — all support a finding that Brindoval's imitation of MCB's trade dress creates a likelihood of confusion.
Importantly, the combination of a confusingly similar word mark with confusingly similar trade dress magnifies the overall likelihood of confusion beyond what either element would create in isolation. A consumer encountering a product bearing the name "MERIDIAN FRESH" in teal-and-white packaging with a wave device will be confronted with multiple, mutually reinforcing signals suggesting that the product originates from or is affiliated with MCB. The cumulative effect of these similarities is substantially more confusing than any single element alone.
VI. State Law Dilution Claim — New York General Business Law § 360-l
In addition to its federal claims, MCB has a viable basis for asserting a trademark dilution claim under New York General Business Law § 360-l, which provides:
"Likelihood of injury to business reputation or of dilution of the distinctive quality of a mark or trade name shall be a ground for injunctive relief in cases of infringement of a mark registered or not registered or in cases of unfair competition, notwithstanding the absence of competition between the parties or the absence of confusion as to the source of goods or services."
To state a dilution claim under Section 360-l, MCB must demonstrate: (1) that it owns a mark possessing distinctive quality, and (2) that the defendant's use creates a likelihood of dilution — either by blurring (weakening the mark's source-identifying power through unauthorized use on unrelated goods or services) or by tarnishment (harming the mark's reputation through association with inferior or unsavory goods or services). See Allied Maint. Corp. v. Allied Mech. Trades, Inc., 42 N.Y.2d 538, 543 (1977); Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 42 (2d Cir. 1994).
Distinctive Quality. MCB's MERIDIAN mark, with over a decade of continuous nationwide use, approximately $94.5 million in annual revenue attributable to the MERIDIAN cleaning line, $47.2 million in cumulative advertising expenditures, and three federal registrations (including one that has achieved incontestable status), possesses significant distinctive quality. The mark is arbitrary as applied to cleaning products and has acquired substantial secondary meaning through extensive commercial use.
Likelihood of Dilution by Blurring. Brindoval's use of MERIDIAN FRESH in connection with directly competing cleaning products blurs the distinctiveness of the MERIDIAN mark by weakening its unique association with MCB. When multiple sources use the same or a confusingly similar mark, the mark's ability to serve as an exclusive identifier of a single source is diminished — even if consumers are not actually confused as to origin. See Mead Data Cent., Inc. v. Crowne Albany Industries, 875 F.2d 1026, 1031 (2d Cir. 1989). Brindoval's use of the MERIDIAN name on competing products threatens to erode the singularity of MCB's brand identity.
Comparison with Federal Dilution Statute. It is worth noting that unlike the federal dilution statute, 15 U.S.C. § 1125(c), which requires the plaintiff's mark to be "famous" — a high threshold that requires widespread recognition among the general consuming public of the United States — New York's dilution statute does not impose a fame requirement. Section 360-l requires only that the mark possess "distinctive quality," a lower standard that MCB's MERIDIAN mark clearly satisfies. See Deere & Co., 41 F.3d at 42 (distinguishing the "famous mark" requirement of the federal statute from the "distinctive quality" requirement of New York law). This distinction makes the state dilution claim a valuable supplement to MCB's federal infringement claims, particularly if there is any question as to whether the MERIDIAN mark meets the demanding fame threshold of the federal statute.
VII. Summary of Factor-by-Factor Conclusions
The following table summarizes the analysis of each Polaroid factor and its directional impact on the overall likelihood-of-confusion inquiry:
Overall Assessment: Six of eight Polaroid factors favor MCB, and the three most critical factors — strength of the mark, similarity of the marks, and proximity of the products — all strongly favor MCB. The remaining two factors (actual confusion and product quality) are, at worst, neutral and are likely to move further in MCB's favor as the consumer confusion survey is completed and documented. On balance, MCB has a strong likelihood-of-confusion claim under the Polaroid test, and the overall weight of the analysis is decidedly in MCB's favor. These conclusions are further reinforced by the trade dress infringement and state-law dilution analyses set forth in Sections V and VI above.
VIII. Recommendations
Based on the foregoing analysis, I respectfully recommend the following course of action:
1.  TTAB Opposition. Proceed with filing the Notice of Opposition before the Trademark Trial and Appeal Board against Brindoval's pending trademark application, U.S. Serial No. 97/412,558 (MERIDIAN FRESH, standard character, IC 3). The opposition should be filed on or before October 14, 2022, which we understand to be the deadline for timely filing (or, alternatively, we should file a request for extension of time to oppose to preserve MCB's rights). The opposition should assert a likelihood of confusion with MCB's three prior registered marks under Section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d), and should seek to block registration of the MERIDIAN FRESH mark on the Principal Register.
2.  Federal Court Complaint. Proceed with filing a federal complaint in the United States District Court for the Southern District of New York, asserting the following claims:
a. Trademark infringement under 15 U.S.C. § 1114(1) (Section 32(1) of the Lanham Act) based on Brindoval's unauthorized use of a mark confusingly similar to MCB's federally registered MERIDIAN and MERIDIAN CLEAN marks;
b. Unfair competition and false designation of origin under 15 U.S.C. § 1125(a) (Section 43(a) of the Lanham Act) based on both word-mark infringement and trade dress infringement;
c. Trademark dilution under New York General Business Law § 360-l based on the likelihood that Brindoval's use of MERIDIAN FRESH will dilute the distinctive quality of MCB's MERIDIAN mark.
3.  Preliminary Injunction. Consider seeking a preliminary injunction at an appropriate time, particularly as to the trade-dress elements of Brindoval's MERIDIAN FRESH packaging (the teal-and-white color scheme and stylized wave device), where the case for irreparable harm is strongest and the visual similarity is most egregious. The trade dress elements represent the most objectively demonstrable copying, and a motion directed at these elements may be more amenable to early injunctive relief than a motion directed solely at the word mark. We should evaluate timing for this motion in light of the availability of survey evidence and the Dominguez declaration.
4.  Consumer Confusion Survey. Await and integrate the results from Dr. Elaine Furman's consumer confusion survey, being conducted by Lakeshore Brand Consulting LLC, to bolster the actual confusion factor (Factor 5) before or concurrent with any preliminary injunction motion. Dr. Furman's survey results are expected later in October 2022. Depending on the survey results, we may wish to file the preliminary injunction motion shortly after receipt of the survey report to present the strongest possible evidentiary showing.
5.  Dominguez Declaration. Recommend that Rachel Dominguez, MCB's Vice President of Brand Management, prepare a comprehensive compilation of any customer complaints, inquiries, or communications reflecting actual confusion between MCB's MERIDIAN products and Brindoval's MERIDIAN FRESH products. This compilation should be organized chronologically and should preserve the original communications (emails, customer service logs, social media messages, etc.) to the extent available. Ms. Dominguez should be prepared to execute a declaration attesting to these instances of actual confusion for use in support of MCB's filings.
6.  Evidence Preservation and discovery Planning. Continue to gather and preserve evidence of Brindoval's knowledge of MCB's marks and the circumstances surrounding Brindoval's adoption of the MERIDIAN FRESH mark. In particular, discovery in this matter should target:
a. Any trademark clearance search conducted by or on behalf of Brindoval prior to the adoption of MERIDIAN FRESH, including communications with outside counsel;
b. Internal Brindoval communications (emails, memoranda, presentations) relating to the selection of the MERIDIAN FRESH name, the developme

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