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Dilution Differences

By Joseph F. Schmidt and Gretchen M. Hosty

The Federal Trademark Dilution Act (FTDA) provides that the owner of a famous mark is entitled to injunctive relief against another's use of a mark or trade name that causes dilution of the distinctive quality of the famous mark.

In Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003), the U.S. Supreme Court considered whether the FTDA requires proof of actual harm or merely a likelihood of harm. The Supreme Court's decision raised the dilution bar by holding that a prerequisite to relief under the FTDA is proof of “actual” dilution, ie, objective proof of actual injury to the economic value of the mark, rather than a mere showing of a presumption of harm based on a subjective “likelihood of dilution” standard.

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