Trademark Dilution, Part 1 [2]

By: Olivier Taillieu
I.P. Lund., 163 F.3d at 50.

The concept of dilution can be further subdivided in two categories: "Blurring" and "tarnishment." Blurring is best described above in the I.P. Lund Trading ApS v. Kohler Co. decisionto wit, it occurs when the "unique and distinctive link" between the plaintiff's mark and its goods or services is muddied and so its value is depressed. Tarnishment, occurs when a famous mark is associated with an offensive or inferior good, or is portrayed in a degrading context, thus lessening the value of the senior mark.

In short, the nature of dilution is to eat away at the value of another's trademark. And, in precluding the otherwise competitive acts that might dilute a mark, the anti-dilution statute gives the mark-holder a much broader property right than a mere claim for infringement does. E.g., The Toro Co. v. Torohead, Inc., 2001 WL 1734485 (Trademark Tr. & App. Bd.), 61 U.S.P.Q.2d 1164. (It is a "bedrock principle of trademark law" that multiple uses of a term as a mark can co-exist when used for non-related goods. Dilution upsets this balance and enables the owner of a famous mark to prohibit the use or registration of the same or substantially similar mark even on unrelated goods.)

Dilution Cases Are Subject to a High Degree of Scrutiny

Dilution is thus deemed to be an "extraordinary remedy." Advantage Rent-A-Car Inc. v. Enterprise Rent-A-Car Co.,

238 F.3d 378, 381 (5th Cir. 2001). As the Fourth Circuit explained:

[W]e simply cannot believe that, as a general proposition, Congress could have intended, without making its intention to do so perfectly clear, to create property rights in gross, unlimited in time (via injunction), even in 'famous' trademarks.

Ringling Bros.-Barnum & Bailey Combined Shows v. Utah Division of Travel Development, 170 F.3d 449, 459 (4th Cir. 1999). See also Nabisco, 191 F.3d at 224 n.6 (quotation marks omitted) ("We agree that the dilution statutes do not prohibit all use of a distinctive mark that the owners prefer not be made .... [W]e agree with the Fourth Circuit that the dilution statutes do not create a 'property right in gross"'); I.P. Lund, 163 F.3d at 47 ("[T]he standard for fame and distinctiveness required to obtain anti-dilution protection is more rigorous than that required to seek infringement protection").

Thus, a plaintiff in a dilution case is likely to face an uphill battle. 4 McCarthy on Trademarks and Unfair Competition § 24:89.50 (4th ed.); e.g., The Toro Co. v. Torohead, Inc., 2001 WL 1734485 (Trademark Tr. & App. Bd.), 61 U.S.P.Q.2d 1164 (stating that unlike in trademark infringement cases, doubts are not resolved in favor of the party claiming dilution).

This article explains the elements and scope of a federal cause of action for dilution for a mark. Infringement is discussed in [Related Article].

Elements of a Federal Dilution Claim

Section 43(c) of the federal Lanham Act lays out the requirements for pleading and proving a federal dilution claim. 15 U.S.C. § 1125(c). This section, which comes from legislation called of the Federal Trademark Dilution Act (FTDA), says states that the holder of a "famous mark" may stop another from using "in commerce" an identifier that "is likely to cause dilution by blurring or dilution by tarnishment."

That definition sets up a neat four-part test courts can follow to determine if a mark has been, or is likely to be, diluted.

To prove dilution, then, a mark holder must establish all of the following: (1) the mark is distinctive and famous; (2) the defendant is using its own mark in commerce (3) the defendant's use begin after the plaintiff's (4) the defendant's use is "likely" to cause dilution by blurring or tarnishment

15 U.S.C. § 1125(c).

Mr. Taillieu is a partner in the litigation department of Zuber & Taillieu LLP (http://www.zuberlaw.com). He earned his J.D. with highest honors from George Washington University School of Law, where he graduated #1 in the day class and was Managing Editor of the Law Review.

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Trademark Dilution, Part 1 [1]

By Olivier Taillieu
This article is for non-lawyers, or attorneys practicing in areas of law other than trademark law, seeking to familiarize themselves with the basics of trademark dilution. This article is Part I of a three part series.

Introduction

Trademark law has evolved to give what is, in essence, a quasi-property right in a "word, name, symbol or device" that identifies and distinguishes one person's goods (or services) from those of another. 15 U.S.C. § 1127. The justification for this is twofold. First, to protect the public from confusion or deception about who is the source of a given product or, in the case of a service mark, a given service. Second, to protect a business's investment in the goodwill in the mark.

Enforcement of such "right" typically takes one of two forms: "Infringement" or "dilution." Laws barring trademark "infringement" seek to protect the first interest. They focus on whether consumers are likely to be confused by the public use of two similar marks. Conversely, laws governing "dilution" seek to protect the second interest. In so doing, dilution jurisprudence focuses on whether the owner's investment in a mark has been lessened or diminished when someone a third party uses a similar identifier. Put another way, it protects from a "free riding on the investment" the trademark holder has made. I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 50 (1st Cir. 1998).

Trademark Dilution is a Cause of Action in its Own Right

Trademark dilution is not a mere fallback position for an unsuccessful someone who was not able to prove infringement plaintiff. 4 McCarthy on Trademarks and Unfair Competition § 24:70 (4th ed.) (citing 15 U.S.C. § 1127, and Playboy Enterprises, Inc. v. Netscape Communications Corp., 55 F. Supp. 2d 1070 (C.D. Cal. 1999)). Rather, it is a distinct wrong and, therefore, a distinct cause of action.

The First Circuit explained this distinction rather eloquently in I.P. Lund Trading ApS v. Kohler Co.:

[I]f a cocoa maker began using the "Rolls Royce" mark to identify its hot chocolate, no consumer confusion would be likely to result. Few would assume that the car company had expanded into the cocoa making business. However, the cocoa maker would be capitalizing on the investment the car company had made in its mark. Consumers readily associate the mark with highly priced automobiles of a certain quality. By identifying the cocoa with the Rolls Royce mark, the producer would be capitalizing on consumers' association of the mark with high quality items.

Moreover, by labeling a different product "Rolls Royce," the cocoa company would be reducing the ability of the mark to identify the mark holder's product. If someone said, "I'm going to get a Rolls Royce," others could no longer be sure the person was planning on buying an expensive automobile. The person might just be planning on buying a cup of cocoa. Thus, the use of the mark to identify the hot chocolate, although not causing consumer confusion, would cause harm by diluting the mark.

Mr. Taillieu is a partner in the litigation department of Zuber & Taillieu LLP (http://www.zuberlaw.com). He earned his J.D. with highest honors from George Washington University School of Law, where he graduated #1 in the day class and was Managing Editor of the Law Review.

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LSAT tutor New York: make your way to law school easy

By Hugh Goldsmith
There is nothing that comes your way easily in life, and that is why you need to work very hard to achieve whatever you want. Being academically successful is something which does not happen to everyone and for this one needs to put in all the efforts that they can. You need to start really early in life and only then you can get academic success. Lsat are mandatory exams that one needs to clear to get entry to any reputed law school in the United States. Studying in a law school and becoming a legal practitioner is a dream that many students have and the person who can best help you in doing this is a Lsat tutor New York, if you happen to reside there or in any other part of the United States. The purpose of conducting the Lsat exam is to find out your ability and based on that score they will decide if you merit admission to any of the law schools or not.

Often it happens that students do not find a tutor from whom they can take help to clear the Lsat exams successfully. So if you happen to reside in New York, then you are really fortunate as you can come across several institutes that provides tutor to students who wish to take the exams and clear it successfully. Each student has different abilities and it is the task of the Lsat tutor to find out these weaknesses and device methods to improve it. If you have a tutor attending to you personally you can do really well in the exams, just make sure that you study whatever the tutor asks you to. The tutor will make you take several mock tests with questions prepared just like the ones which will be asked in the Lsat exams. This will help in boosting up your preparations.

The Lsat test consists of two sections where one is the multiple test section and the other is the writing section. The most important thing which students have to take care of while writing the test is the time allotted for the test. Finishing the test within the stipulated time is very important and one must work towards doing this. The Lsat tutor will conduct enough mock tests for you so that you do not have any difficulty in this when you sit for the actual exam. The multiple test section of the exam is divided into five sections and a candidate is required to apply logic to solve the questions correctly. Another section consists of more than 20 comprehensive questions and students must solve all this correctly if they want to get good scores in their Lsat test.

The format is not very difficult and a student must make sure that that he or she seeks help from Lsat tutor New York who has a very good success rate. The tutors are professionals qualified to help out students and if you seek the help of one of the tutor you will end up scoring good marks in the Lsat exams.

Hugh Goldsmith is of the view that students must not read the SAT exams or for that matter any other exams.He helps out students who want advice on any aspects related to exams. For more information on LSAT Tutor in New York, SAT Tutor NYC, English Tutor NYC visit www.prestigeprep.com

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Know The Specifications Of Atvs, Dirt Bikes, Super Pocket Bikes, Go Karts, Scooters For Kids And Adults

By Rashmi Saxena
Bikes are crazy kind of transport and are sweeping the world in popularity. Riding bike is fun as well as exciting. Bike riding is one of the interesting rides which will be suitable for men, women and children. That’s why today variety of bikes are available in market to match-up the style, taste and preferences of customer requirements.

Nowadays large number of manufacturers are designing and producing various models of on-road and off road bikes like kids mini bikes, ATVs (All terrain vehicle), dirt bikes, super pocket bikes, Go Karts, scooters etc to facilitate the adults and children's need. They also try to sell it in affordable / discounted prices to suite everyone’s pocket.

The ATV, dirt bikes, go karts and pocket bikes are the racing vehicles / bike that are often owned and operated by younger drivers. ATVs are usually used off road along with dirt bikes and mini bikes. Go karts are the 4 wheeler vehicles and are typically driven on paved tracks specifically made for the go kart. The go karts, mini bike, dirt bike or ATVs don't usually get out on the open road.

Some specifications has been set depending upon the engine power of the bike to suite with certain age group. Like 49cc to 70cc bikes are recommended for the kids riders of age between 6-12, and always with adult supervision. Similarly bikes of 70cc to 90cc and 90cc or greater are recommended for use only by riders age 12- 15 years older and 16 years and older respectively.

Kids often think of mini bikes as toys, not as adult vehicles. But a bike can never be a toy. Similarly, youth often think of themselves as being immune to automobile driving regulations and immune to accidents as well. But this kind of attitude can hazardous to operate, it is suggested for riders to take an approved training course, pay proper attention while driving and be responsible while riding. While driving one should always wear approved attire, helmet, eye protection and protective clothing.

The fun of riding dirt bikes, kids ATVs, go karts and pocket bikes or any other bike can be enjoyed when driven careful and as per the state law.

Powersports Bike Dealer from Northern California offering Go karts, Atv's, dirt bikes, scooters, super bikes, parts and accessories. One can request a quote / buy online.

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Building Wealth: What Abundance Gurus Don't Tell You About the Law of Attraction2

By: Molly Gordon
WHEN A LEVER IS JUST A STICK IN THE MUD
The Law of Attraction magnifies your intentions and actions to produce significant change just as leverage amplifies a relatively small force to produce a relatively large result.

Investors use leverage when they borrow money in the expectation that the rate of return will exceed the cost of the loan, thus making it possible to generate earnings even when they don't have the cash for an investment.

In mechanics, leverage is produced when you push down on the long end of a stick resting on a fulcrum so that the short end moves upward with great force.

In physics and metaphysics, no fulcrum = no leverage. If you can't repay a loan, you won't profit from borrowing money. Push on a stick without a fulcrum, and, at best, you sink the stick in the mud.

If you rely on the Law of Attraction to produce results without grounding your vision in current reality, no amount of positive thinking or visualization will be sufficient to get what you want.

Reality is the fulcrum without which the lever of attraction is useless.

POWER WITHOUT TRACTION EQUALS SPIN OUT
If you've ever hit the gas when driving on a wet or icy road, you know that adding power when you don't have traction results in loss of control. You can go fast, but without traction you have no control over where you are going.

Similarly, when you use affirmations and positive thinking to ramp up your energy without being firmly rooted in acceptance of What Is, you will spin your wheels every time.

Accepting -- even loving -- Reality is where the rubber meets the road. It is the key to traction.

THE POWER OF ATTRACTION STARTS WITH LOVING WHAT IS
Accepting yourself and reality here and now is the missing piece of the attraction puzzle, but how do you do that? What if you find yourself devoutly wishing that someone would just put you away so you won't have to deal with yourself for a while? (Or am I the only one who feels that way sometimes?)

When the truth is that you don't like the way things are, then that's the place to begin your practice of acceptance. Stop. Look. Listen to yourself. Make room for the uncomfortable thoughts and beliefs that you are so eager to get rid of.

There's a lovely story of the Tibetan saint, Milarepa. One day he was meditating in front of his cave when the demons of anger, greed, and fear arose before him. They were truly horrible being, and the sounds they made were gut wrenching.

Rather than push them away, Milarepa invited the demons in for tea. One by one they entered his cave, and in the light of his clear regard, they dissolved.

Finally, only one demon remained, the most terrifying of them all. It roared and howled, and far from dissolving, it grew. At last, Milarepa stood and bowed, baring his neck and thrusting his head between the demon's fangs. As he breathed in the sulfurous stench of the creature's breath, Milarepa whispered, "Teach me your pain."

When your own demons howl in protest at what is, when doubts assail you and you feel like divorcing your sweet self, it's time for tea and radical surrender.

Are you still with me? I hope so, because here's the magic formula that restores balance to the Law of Attraction. Acknowledge, accept, and question (not argue with) your stressful thoughts. Sit in the answers that arise from within.

How do you do that? The best way I know is The Work® of Byron Katie. The Work is a direct route to acceptance, and from acceptance, creative ambition can't help but flower.

Molly Gordon is a renowned business coach. Read her articles to reinvent the relationship between money and you, and find out how to use the power of positive thinking for building wealth.

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