Trademark Dilution:

Whereas likelihood of confusion is intended to protect consumers, trademark dilution concerns itself with the company. Trademark dilution is a weakening or reduction in the ability of a mark to distinguish one source from another clearly and unmistakably. The underlying rationale of the dilution doctrine is that a gradual attenuation or whittling away of the value of the trademark that results from use by another constitutes an invasion of the senior user’s property right in its mark and gives rise to an independent commercial tort.

In general, dilution can result from either “blurring” or “tarnishment.” Dilution by blurring is the classic injurious impact of dilution theory. Blurring occurs where customers or prospective customers will see the plaintiff’s mark used by other persons to identify other sources on a plethora of different goods and services. The unique and distinctive significance of the mark to identify one source from another may be diluted and weakened. Dilution by tarnishment occurs when the defendant’s unauthorized use of a plaintiff’s mark is to tarnish, degrade or dilute the distinctive quality of the mark.

The specific harm caused by dilution can be difficult to quantify, since dilution occurs gradually, and therefore, is not amenable to measurement at a particular time. Consequently, experts knowledgeable in consumer research are necessary to support either plaintiff or defendant. I offer such expertise.


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