Difference between revisions of "Trademark dilution"
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Revision as of 21:12, May 8, 2008
Trademark dilution occurs when a famous trademark is used by another company in a way that dilutes the distinctiveness of the mark, either by "blurring" its distinctive use or by "tarnishing" its reputation by placing it in unflattering light.
The right of a trademark owner to bring an action for trademark dilution is in addition to its right to bring an action for infringement. Trademark dilution can be asserted under federal and state law.
Federal law limits claims of dilution to actions brought on behalf of trademarks that are "famous." These criteria are used in determining whether a trademark is famous:[1]
(1) the degree of acquired or inherent distinctiveness; (2) the duration and extent of use; (3) the amount of publicity and/or advertising; (4) the geographic extent of the market; (5) the channels of trade; (6) the degree of recognition in trading areas; (7) any use of similar marks by third parties; and (8) whether the mark is registered.
"Xerox" was a classic, famous mark.
But note that under state law a claim for dilution may be brought even if the mark is not famous. Dilution claims may be asserted under state law if:[2]
(1) the mark has a distinctive quality or "selling power"; and (2) there is substantial similarity between the two marks.
In contrast to a claim for infringement, the plaintiff need not assert likelihood of confusion, but need only demonstrate "blurring" or "tarnishment".
Blurring is shown by demonstrating a that the mark is weakened through association or identification with dissimilar goods, as in "Xerox" automobiles.
Tarnishment is shown by demonstrating the use of the mark in unflattering light. This can occur if the mark is used in connection with pornographic products.