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The Federal Courts' View of the State of Dilution in the States
The Victoria's Secret case raised the hurdle for plaintiffs claiming dilution under the Lanham Act, generally making it much harder to prevail in a federal dilution action. The Supreme Court followed the plain meaning of the statute in interpreting the Federal Trademark Dilution Act (FTDA), 15 U.S.C. '1125(c) [Sec. 43(c) of the Lanham Act] to require a showing of “actual dilution” in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003) (hereinafter “Victoria's Secret“). The Supreme Court got to this position in part by contrasting 43(c) with the language of state dilution laws, which in many cases do not require actual dilution (and recognize tarnishment, besides). Some state laws can, in theory, help plaintiffs with a dilution claim. This article examines how this is actually playing out.
There are those who still question whether 43(c) has lost its bite, and cite the Victoria's Secret reference to the possibility of proof of actual dilution “through circumstantial evidence ' the obvious case is one where the junior and senior marks are identical.” (Victoria's Secret, 537 U.S. at 434). Sounds good. But at least two courts have viewed this statement as ambiguous. Judge Richard Posner, in Ty Inc. v. Softbelly's, Inc., 69 U.S.P.Q. 2d 1213, 1219 (7th Cir. 2003) said: “The Court did not explain and no one seems to know what that 'circumstantial evidence' might be.” The U.S. District Court for the Southern District of New York found the Supreme Court's statement does not mean that if the marks are identical, that in itself is the circumstantial evidence. Instead, the court interpreted the Victoria's Secret reference to “circumstantial evidence” to mean: Circumstantial evidence of actual dilution, as opposed to direct evidence, is sufficient when the marks are identical. Savin Corp. v. Savin Group, 68 U.S.P.Q. 2d 1893, 1904 (S.D.N.Y. 2003). Since circumstantial evidence is often appropriate, with the question going to its weight, this is a puzzling interpretation. This is another reason the state law may be increasingly attractive to plaintiffs.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.