IN THIS VIDEO WE DISCUSS, WHAT IS TRADEMARK DILUTION? INTELLECTUAL PROPERTY LAW | TRADEMARK LAW | TRADEMARK LAWYER #LAWFIRM #SHOTS #YOUTUBESHOTS
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TRADEMARK DILUTION
In some cases, the likelihood of confusion is not present, but there is still damage done to a recognized mark by a second seller's unfair use of it. If the mark makes the public think there are two different sources for the same mark, even though there is no confusion. This type of perception injures the brand. The mark is weakened because it is identified with dissimilar goods. Therefore, the mark can be charged as diluting another mark.
An action for trademark dilution can be brought under either Federal or State law. However, under Federal law there is a strong standard to have an existing mark to be diluted ñ the mark must be ìfamousî and well-known.
To determine if a mark is famous, the Court will weigh factors:
(1) Degree of inherent or acquired distinctiveness;
(2) Duration and extent of use;
(3) Amount of advertising and publicity;
(4) Geographic market;
(5) Channels of trade;
(6) Recognition in trading areas;
(7) Use of similar marks by third parties; and
(8) Whether the mark was registered.
Under State law, the mark does not need to be famous. Rather, an action for trademark dilution exists if: (1) the mark has selling power or distinctive quality; and (2) the two marks are substantially similar.
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