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 Federal Courts' View of the State of Dilution in the States
The <i>Victoria's Secret</i> 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 <i>Moseley v. V Secret Catalogue, Inc.,</i> 537 U.S. 418 (2003) (hereinafter "<i>Victoria's Secret</i>"). 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.
By
Jane Shay WaldThis premium content is locked for The Intellectual Property Strategist subscribers only
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