This appeal is directed only at errors claimed to affect the corporate defendant, Speed Industries, Inc., except for Assignments of Error Nos. 7 and 8. Those two assignments challenge the award of attorney’s fees, litigation expenses, and costs which was made jointly and severally against defendants Speed Industries, Inc., Gilbert Edward Travis, and Charles Klick (see paragraph 2, Journal Entry of February 10, 1972, by the trial court) and a claim that an element of proof necessary for the award of attorney’s fees, properly the plaintiff’s burden, was placed on the defendants.
Plaintiff-appellee and defendants-appellant, Speed Industries, Inc., will be referred to hereafter as “Gasket”, or “Speed”, or as the “plaintiff”, and the “corporate defendant”, respectively.
I.
After extensive findings of fact and conclusions of law the trial court declared the defendants to be in violation of *67R. O. 4165.02(B) and (C),1 and issued an injunction broadly limiting the defendants in the use2 of any trade-mark, symbol, or logo which is confusingly ‘ ‘ similar to, a simulation of, or in any manner” imitating the plaintiff’s logo in existence at the time the suit began.
A similar limitation was placed on the defendants’ use of the “products or parts, identification numbers or parts descriptions which are substantially similar, identical to, or which in major part contain a sequence of product numbers or part descriptions similar, or identical to, the product numbers, part descriptions or sequence” used by the plaintiff as they appeared in its catalogs in existence at the time the suit was initiated. Dissimilarity is not achieved, under the order, by using an alphabetical prefix or suffix.3
Also enjoined was the use by Defendant Speed on packaging materials of certain specified primary colors used by the plaintiff at the time of suit in packaging prod-uts comparable to those sold by Speed. Particular restrictions were imposed on the use of the color blue on the front or back of any Speed product or price catalog.
In addition, the defendants were prohibited from doings acts in the course of their business which would deceive *68the consumers and the public into believing that Speed or its products were in any way “connected with, endorsed by, or licensed by Mr. Gasket Co.” Further, defendants were not to do or attempt to do anything in the course of their business “likely to cause confusion as to the source of defendants’ goods by confusing members of the public into the belief that defendants are in any way affiliated with Mr. Gasket Co.”
Finally, the defendants were prohibited from any use, exploitation or divulgence of any confidential or proprietary information which individual Defendant Travis may have obtained while in the employ of the plaintiff.
The order awarded attorney fees, litigation expenses, and costs to the plaintiff to be paid by all the defendants under joint and several liability.
II.
Although nine errors are assigned, all are encompas*69sed in the four principal issues raised by the defendants on appeal. These are:
(1) Whether legally, there can be a proprietary interest in color or numbers which is entitled to protection by injunction or other relief.
(2) Whether before that can be protection for a combination of factors used in trade dress there must be proof that the dress has acquired secondary meaning, and if so, was there such proof in this case.
(3) Whether deceit was practiced on the Court below in connection with plaintiff’s exhibits 8 and 16, and exhibits 11, 12, 13, and 14.5
(4) Whether there was a basis for the award of attorney fees under R. C. 4165.03.6
*70IIL
The applicable law7 is more easily stated than applied. For this reason there is relatively little controversy over the principles governing this case but a great deal over the consequences of that governance.
Federal pre-emption through patent, copyright, and trade-mark regulation has restricted state action in deceptive trade practice law to the prevention of confusion of sources8 by regulating such matters as trade dress, labeling, and passing off to prevent source confusion, Sears, Roebuck v. Stiffel Co. (1964), 376 U. S. 225, 232, 233, 11 L. Ed. 2d 661, 667-668; Compco Corp. v. Day-Brite Lighting, Inc. (1964), 376 U. S. 234, 238, 11 L. Ed. 2d 669, 672-673.9 *71In the remaining area, the only one in which the states have room to regulate, it is clear that protectable proprietary interests cannot be acquired in color or numbering as such. Neither trade-mark nor unfair competition concepts extend protection that far. See Life Savers Corp. v. Curtiss Candy Co. (7th Cir. 1950), 182 F. 2d 4, 9; Campbell Soup Company v. Armour & Co. (3rd Cir. 1949), 175 F. 2d 795, 798; Diamond Match Co. v. Saginaw Match Co. (6th Cir. 1906), 142 F. 727, 729 (colors); Bechik Products Inc. v. Federal Silk Mills, Inc. (D. Md. 1955), 135 F. Supp. 570, 577-578; Mathews Conveyor Co. v. Palmer-Bee Co. (6th Cir. 1943), 135 F. 2d 73, 84 (numbers). On the other hand if a constellation of characteristics has acquired a secondary meaning,10" i. e., a distinctive trade dress, an interest is created which a state can act to protect in order to pre *72vent the likelihood of consumer confusion as to source, Compco Corp. v. Day-Brite Lighting, Inc. 11 supra, note 8.
Because the likelihood of confusion fades to the point of extinction in the absence of an acquired secondary meaning12 for the trade dress,13 we adopt that view which holds that proof of secondary meaning is an essential element in the proof of likelihood of confusion of sources. See Tas-T-Nut Co. v. Variety Nut & Date Co. (6 Cir. 1957), 245 F. 2d 3, 7; Lucien Lelong, Inc., v. Lander Co. (2 Cir. 1947), 164 F. 2d 395, 397. Stated in the flatest terms, the proposition is that if there is no secondary meaning, no consumer cares about the source and the likelihood of confusion, if any, is neutralized by apathy.14 Thus the dispositive questions in this case are whether the plaintiff has sustained its burden of proving, see The 88c Stores, Inc., v. Martinez (1961), 227 Or. 147, 153-154, 361 P. 2d 809, 812, secondary meaning for its trade dress and if it has, whether it has also established that such similarity exists between that dress and defendant’s that the statutory test — “likelihood of confusion or misunderstanding” — is satisfied.15 These is*73sues are questions of fact. The 88c Stores, Inc., v. Martinez, supra, at 153, 361 P. 2d at 812. See, also, Zippo Manufacturing Co. v. Rogers Imports, Inc. (S. D. N. Y. 1963), 216 F. Supp. 670, 679.16
IV.
The plaintiff, Mr. Gasket Co., was formed in 1964 as a proprietorship and gradually expanded its original line of gasket products for the “high performance”17 replacement market to include more than eleven hundred items for the same market.
The plaintiff devised a numbering system to identify replacement parts on different makes of cars, e. g., a 100 series for Chevrolet gaskets, a 200 series for Ford, and 300 series for Chrysler. It put its gaskets on identifying colored boards using, for example, blue for intake gaskets, red for exhaust gaskets, and orange for valve cover gaskets. *74The boards were covered with a clear “skin” of plastic material drawn tightly over the product in place on the board.
Plaintiff also developed a logo,18 revised in 1970 to include a block “G-”. Part of the logo was a small stylized figure of a man carrying a checkered flag (see Def. Ex. MM).
It is apparent from the record that the plaintiff has had a highly successful and expanding business and that a variety of the competitors for the high performance market have adopted numbering and packaging systems more or less the same as those employed by the plaintiff. Skin packaging, for example, is common and several competitors use a comparable numbering system adding only a letter or an additional digit for distinction. The gasket configurations of all competitors are of necessity identical in functional essentials for particular makes of cars. Otherwise, the gaskets would not fit. Mr. Gasket Co. has marketed its gaskets in both plain white material (Plaintiff’s Ex. 8) and a grayish white material with a Mr. Gasket Co. stamp (Def’s. Ex. MM).
The marketing of gaskets may be over the counter or from self-service peg boards but neither the plaintiff, Mr. Gasket Co., nor its competition, so far as the record shows, sells directly at retail. The customers in the high performance market may be a highly sophisticated trade from professional racers (about 15 percent, the trial court found).19 By implication the remaining trade has its origin in the general public. Of course, there are distributors who purchase at wholesale for resale to the public.
Speed Industries, Inc., entered the gasket field in 1969 and by early 1971 had adopted much, if not all, of plaintiff’s numbering system prefacing the numbers with an “S” or, in some instances with an extra digit.20
In addition, Speed Industries, Inc., used blue, red, and *75orange commercial coloring, respectively, for its boards mounting intake, exhaust, and valve cover gaskets. These colors were close, if not identical, to those used by Mr. Gasket Co.
In 1971, Speed Industries, Inc., also redesigned its logo to form a slanted block “S”21 which closely resembled Mr. Gasket Co.’s logo.22 However, the slanted block ,S” logo was used only on a 1971 catalog for Speed Industries product distributed at a Dallas trade show and then withdrawn.23 The record does not show that the slanted block ‘S” ever appeared in a Speed Industries logo attached to and identifying the source of a product.
There was testimony indicating extensive Mr. Gasket Co. advertising campaigns and business growth and that it had used its trade dress including logo, card colors and packaging techniques for a number of years. Mr. Robert Popkin, North Belmore, Long Island, New York, whose employer was a national sales organization for Mr. Gasket Co. testified that certain colors used by that company had become synonymous with particular gasket products and that “most customers who buy from a store were used to these particular items because they purchased them before.” (Tr. 423) He also testified that anyone who “really didn’t know the two lines would be definitely confused.” (Tr. 428) His expert opinion was that a consumer would be confused (Tr. 456, 459). Mr. Denver McCoy of Elyria, a self-employed wholesaler and distributor of high performance auto parts including the Mr. Gasket Co. (but not Speed Industries, Inc.) products was of the opinion as an expert that consumers would be confused by the similarity in packaging and would believe that Mr. Gasket Co. and Speed Industries, Inc., were affiliated (Tr. 474-476). Although in his experience he had never seen a customer so confused (Tr. 478). Mr. Dennis Lee Holding, Vice President for Marketing, Mr. Gasket Co., testified that custom*76ers for the company’s product throughout the country had learned to identify his company’s gaskets by colors and numbers. He also said that the numbers had “virtually become standard in the industry.” (Tr. 83-84)
There was considerable evidence, both testimonial and real, aimed at demonstrating similarity in trade dress between Mr. Gasket and Speed products. There was also some evidence that one or more wholesalers and distributors, at least one at the Dallas show in 1971, were sufficiently impressed by catalog similarities (Tr. 85-86, 89) to inquire whether the two companies were affiliated, associated, or connected.
We turn to an analysis of the consequences of the proofs made in this case.
Y.
Apart from evidence of extensive advertising and growth of the business, all the evidence of secondary meaning for the plaintiff’s trade dress came from three witnesses. Advertising and growth do not establish secondary meaning.24 And none of the three witnesses provided specific, objective evidence of consumer identification of the product source with the trade dress.25 The most that can be gleaned from the total testimony, weighed at its best for the plaintiff, is a conclusion of the witnesses, unattached to a base of evidentiary fact, that there is some confusion in the customers’ minds. This confusion is said to originate in the asserted customers’ recognition of plaintiff’s product by its trade dress and the similarity between that *77trade dress and the aping of it by the Defendant Speed. Because it is the customers ’ confusion that counts, it is the likelihood of a mix of cognitions in the public mind which is essential if the plaintiff is to prevail.26 Accordingly, as we have indicated the plaintiff must prove the secondary meaning before there can be a likelihood of confusion.27 One is the foundation for the other. Both the secondary meaning and the likelihood of confusion based on similarity are elements of the proof.28 At best plaintiff has satisfied only the similarity test. 29 On the second element it has at least provided the evidence from which a trier of the facts might properly deduce a probability of confusion if the secondary meaning ivere established.
There are methods for establishing secondary meaning. Direct customer testimony is one.30 Some courts have admitted customer surveys.31 There may be other modes of proof.
*78However, we do not presume to tell a party how to present its case. It is enough that we conclude that whatever methods would produce evidence sufficient to meet the burden of proof not one of them was used in this case to carry plaintiff’s burden.
VL
These questions remain: (1) the effect of the admission of Plaintiff’s Exhibits 8, 16,11,12,13, and 14; (2) the legal justification for the trial court’s award of attorneys’ fees, including the question whether the trial court improperly put the burden of proving wilful knowledge of deception on the defendant; and (3) whether the injunction is impermissibly broad.
We have examined the challenges directed to the exhibits and find them without merit. From the record it appears that the trial court understood the exhibits and was not misled. Therefore, if their admission was error, it was harmless.
The statutory authority for the award of attorney fees in actions of this kind is clear, cf. R. C. 4165.03?32 However, it is a permissive authority for an award to the party prevailing under R. C. 4165.02. Until the matter of secondary meaning is cleared (see VII below), it will not be known which party prevailed. Therefore, an award of fees is premature and that award is set aside.
When it has been decided which party has prevailed, it will be time to consider the assessment of attorneys’ fees. The conditions requiring payment of such fees by a defendant are met when it has been determined that a defendant “has wilfully engaged in the trade practice knowing it to be deceptive.” It seems clear that the legal conclusions of the trial court in the present action will fairly support an interpretation that the proofs adduced by the plaintiff were sufficient to make a prima facie case of wilful engagement in a practice intended to be deceptive. On the basis of tenable inferences from the evidence we can*79not say that conclusion was unjustified. When the triaT court then spoke of the defendant having:
“. . . offered no evidence or explanation to show that their conduct of which plaintiff complains was in pursuit of some legitimate and lawful purpose. . . .” It was simply saying that the plaintiff’s evidence was sufficient to shift the burden of going forward. This is not the same thing as shifting the burden of proof. Defendant’s claim on this point lacks substance.
VII.
In our view, the injunction is overbroad. The statutory protection was not intended to put out of business one charged as the corporate defendant here was charged.33
Both parties supply the parts and products for the same automotive models and makes. Because this is so it is unreasonable not to allow similar or identical descriptions and number sequences with a distinguishing alphabetic prefix or suffix coupled with a distinctive logo clearly identifying the source. Nor can the plaintiff acquire a proprietary interest in any color use per se. It is sufficient that a successful plaintiff be protected against the conjunctive use of particular features of trade dress which have acquired a secondary meaning associated with the identification of the plaintiff’s products. This limitation will be enough to stop that confusion or misunderstanding of “source”, “sponsorship”, “affiliation”, “connection”, or *80“certification” which the statute (see footnote 1) was designed to impede. However, it is unnecessary to determine the exact scope of a proper order at this juncture.
The cause will be remanded for further proceedings on the issue of secondary meaning.34 Assuming, arguendo, that secondary meaning is established, then will be the occasion for an order precise enough to protect the interests of both parties. Of course, should there be a complete absence of evidence supporting a secondary meaning, no injunctive relief would be appropriate.
Reversed and remanded for further proceedings according to law.
Judgment reversed.
Jackson, J., concurs.
Manos, C. J., dissents.
