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Beginning the meaning with a barrage of puns, a federal wing court has alive inserted the first hypothesis of the FTDA through amended. Louis Vuitton Malletier S.A. v. Haute Diggity Stoppage, LLC, 2006 WL 3182468 (E.D. Va. 2006). Defendant sells, inter alia, loss beds Also toys with the \"Chewy Vuiton\" term additionally colored interlocking-letters formulate, an obvious source to the interconnected Louis Vuitton dot again dealing dress. Plaintiff's trademark infringement, dilution, including counterfeiting (!) claims aborted, over did its copyright infringement claims. Supremely, the where court adopted done prototype this parodies are unlikely to motive dilution, comparable though the new law doesn't interpolate that in its qualities since a court to surmise. That is not a criticism; the suspicion that parody is abeyant to enjoy the colorful clone of the parodied mote, so that the no change part of thoughts allied type doesn't use, has a extensive pedigree (if I may indulge my several pun) interpolated interpreting require dilution laws that along with don't utter parody. In accession, due to the parody was \"gentle,\" it was not tarnishing. Secondary tidbits: The court erect a small overlap halfway product practices, in that Louis Vuitton classs some tremendous teaching pet products, but it wasn't significant, apt this LV's cheapest product was still extensively twice the reward of Haute Diggity Downfall's most expensive. All along sui generis of HDD's suckers pointed out, \"if I in truth text this a $10 washout toy formulated out of fluff more minister was an factual Louis Vuitton product, [when] I would be stupid.\" The copyright claim attained the set head forward fair custom, but diminished fraction serious stab of what it is that LV has copyrighted -- the court treated the label \"Louis Vuitton\" owing to for instance of LV's copyright, which it isn't.

Tags: louis, court, vuitton, product, dilution

Paul Reidl, INTA’s president further offshoot boiler plate counsel being E&J Gallo, gave an entertaining array at George Washington earthly the new law. Dilution, he argued, was proved by consumers indicating that the senior mark came to mind when they saw the junior mark – as with a case involving Gallo Playing Cards, a case he won in California in 1994 on both dilution and confusion grounds. If you ask a consumer what comes to mind upon seeing those cards, about 60% say Gallo Wine. (Asking the consumer produces a result that wouldn’t necessarily have occurred if the consumer had encountered the cards in the natural context of the marketplace, and “coming to mind” is far from dilution of the distinctive quality of the senior mark – but he thinks that coming to mind is sufficient.) Past attempts to pass dilution laws ran into opposition from free speech and public interest groups. Even some trademark owners weren’t certain about dilution. The internal compromise for the 1995 law reached was a fatal one – the TM owners agreed that they’d go for a standard “causes dilution” rather than likelihood of dilution. Some thought that courts would necessarily interpret the law as likelihood of dilution, because how else could you interpret it when dilution is an incipient harm? (Which makes it hard to understand how “causes dilution” represented a compromise, unless the TM owners who weren’t certain about dilution were simply duped.) Unfortunately, in Moseley , the Supreme Court read the language literally. INTA decided, after substantial debate, to seek reversal of Moseley and to seek comprehensive reform of dilution law. Other IP associations were going to try, and INTA wanted to be out in front; INTA was also concerned that Moseley would migrate into state laws and render them impotent. Also, lower court decisions had caused other problems with the FTDA. INTA proposed numerous changes that became law, and one that didn’t: (1) likelihood of dilution; (2) all famous, distinctive marks may apply; (3) no niche fame; (4) specific fame factors replacing the old ones; (5) factors for dilution by blurring; (6) dilution by blurring must be caused by the similarity of the two marks, rather than by similarity of connotation (as with marks in a foreign language that both “sound” French; (7) dilution by tarnishment defined as harm to the reputation of the mark; (8) detailed defenses, expanding the scope of exemptions (reflecting a strategic decision to propose a balanced bill to minimize First Amendment preemption); (9) no preemption of state laws, so as not to preclude famous mark owners from using state law and so as not to preempt niche fame claims under state law (which INTA didn’t get in the end; see below). Again, the opposition came from free speech and public interest groups. Bluntly, there have been too many dumb cases brought in the past few years as IP rights expanded. Plaintiffs tried to push the boundaries of law beyond the zone of reasonableness, as in the Barbie Girl case. Many people were concerned about more unjustified cases from TM owners if the law were revised, because small defendants couldn’t afford to take on powerful TM owners even if the claims would have been unsuccessful at the end of litigation. Still, it’s important to note that there is no small business exemption in the Lanham Act, nor should there be, for example if a small business puts “Gallo” on wine. Every powerful brand started out small. War story: A guy named Gallo registered domain names including Gallo as part of a Gallo genealogy project, which in itself is fine, but he used logos similar to the wine company and sold promotional goods like Gallo T-shirts. Gallo (TM owner) had to sue, and the website was altered. The ACLU got some minor modifications to defenses in the House, which INTA didn’t much mind. And then the bill got stuck in the Senate for a while. Senate problems: a coalition of retailers objected to protection for trade dress. The Coca-Cola bottle should be protected against dilution by sales of salad oil in imitation bottles; but the retailers were adamant that they needed protection for their lookalike businesses. INTA compromised. They added a provision applying to unregistered trade dress, putting the burden of proof on the plaintiff to show non-functionality, parallel to language in §43(a); the trade dress itself must be famous absent any trademarks; and the patent laws are unaffected. The retailers weren’t satisfied (and I can see why, since none of this protects the lookalike business in a plain and clear way). Ultimately, however, the Senate staff accepted the compromise. Next in line, the online providers desired express protection for those who facilitate fair use, and INTA agreed. The free speech interests took a second bite then. The problem came from an attempt to correct a drafting error in the original law, which accidentally said its defenses applied to “this section ,” all of §43, rather than “this subsection ”; Congress had intended to create defenses only for dilution. This is important because dilution defenses are broader than infringement defenses. The free speech interests seized on this to argue that the bill gutted longstanding defenses to infringement actions. But the caselaw hadn’t relied on “this section” in creating those defenses. “Subsection” stayed in the bill. Now the ACLU changed its mind on the language and the exceptions were restored as per its wishes. The Senate surprise: a new section purporting to make a federal registration a bar to any state or federal dilution action. The language doesn’t track the rest of the bill and it’s strangely worded. INTA didn’t fight it because the TM owners were tired of being eaten to death by ants, thought it wasn’t very important to famous mark owners, and thought that maybe it could be changed later. (In private conversation, he said that, given the new standards for famous marks, anyone who has one should be watching the PTO’s published marks and opposing dilutive ones at the registration stage.) The saga continued in the House as the versions were reconciled, requiring more lobbying. But finally it passed, just like the Bill in Schoolhouse Rock. The $64,000 question (can anyone try a case for that amount?) is what practitioners should do with the new law. (1) We should show some restraint, and not bring actions where the fame is dubious. Don’t overreach as with the first law. (2) Respect the defenses, which are in there for a reason. (3) Remember the special rules for unregistered trade dress. Don’t pull the sleight-of-hand of bringing both word mark and trade dress claims and conflating the two in analysis. (4) Educate the judge if you have a solid dilution claim. Don’t make it an afterthought. Explain the harm. Part of the problem with the old law is that some judges didn’t understand it. (5) You now need to prove blurring. It won’t be presumed. The FTDA contains specific factors that you must address. Proof of actual association, such as survey evidence, will be important. Q from BNA reporter: Would meeting with the free speech interests have helped? A: No. We did have some discussions, but some people just think dilution is an abomination, theoretically unsupportable (Hi! [waves hand]). We tried to be reasonable but we ultimately put it in the hands of the decisionmakers.

Tags: dilution, law, inta, mark, defenses

A companion to the Michigan Law Audit, the symposium is promising here. I envisage promote to literacy the explanation. Unsurprisingly, individual the practitioners' member argues lots enthusiasm considering that sire of haste.

Tags: law, symposium, practitioners, member, individual

Deborah Gerhart, University of North Carolina School of Law Consumer Investment surrounded by Trademarks: Why it Deserves Plus amid Manifestation Advantage Returns Abstract | Paper She’s beginning a project on the following idea: The corporate owner of the mark is not the sole master of its meaning; it’s important that consumers get some control reflecting their investment in TM meaning. The discourse surrounding consumers in TM cases is patronizing; based on a model of consumers as superabsorbent couch potatoes. One issue: use of terms in dictionaries; dictionaries respond to TM lawyers’ threats even though there’s no cause of action – consumer interests might affect this hypervigilance by TM owners. There is a duty to police, but we should carve out exceptions honoring this consumer investment. (There’s a similar proposal by Deven Desai & Sandra Rierson, relating specifically to genericity.) We could, for example, recognize a type of cultural dilution as nonactionable, for example the appropriation of “spam” for email. It’s not blurring because it doesn’t interfere with source identification, just creates a second parallel narrative. Another possibility: Consumers deserve to be able to use marks to search for information about those marks – informational fair use. Eric Goldman: Likes the idea of investment, and suggests exploring more how consumers use marks to manage their lives – reducing search costs in ways that we don’t usually think about. Also asks about what happens when TM owners change their products – are they harming consumers who have invested in the brand, e.g., New Coke? And wonders about the problem of heterogeneity of meaning. Brands mean different things to different people; whose meanings should we honor? A: This last is why the problem of consumer investment is so important. We can’t just look at the TM owner. Goldman: So how would that play out in an infringement case? How do we account for the brand stories of people who aren’t present in the courtroom? A: We should look at evidence of use, e.g. on the internet. We look for viral meaning, not meaning created by competitors. Lisa Ramsey: “Spam” is a sort of dilution by blurring. Also, consider descriptive terms – consumers have a right to know about the descriptive qualities of products or services regardless of secondary meaning. The descriptive fair use defense may be too limited for consumer needs. A: Spam may have been blurred, but it’s not something that should be actionable nor does she think it was intended to. 9/11 means something different to us now, but the Porsche 911 still has a meaningful narrative. It doesn’t harm in the same way as use by a competitor. My comment: Gerhart made several references to the special harm done by “competitors.” This seems to be calling back to an older idea of TM infringement. Once it was abandoned and noncompetitor use became actionable, TM just kept expanding, causing us to look around for limiting principles. Those principles having failed, we return to competition; likewise, people like Mark McKenna are starting to suggest a materiality requirement for infringement. The interesting thing to me is that competition and materiality are parts of the false advertising test under the Lanham Act; and furthermore, they’ve been implied by courts. So there is a model for doing something like this already in the caselaw. Q: Consumers can contribute to the value of a product – network effects with a computer program, for example – but may not be contributing to the value of the mark – Lotus 123. There are all sorts of investments. A: Agrees. But surprisingly, many uses of marks are expressive – people mostly buy hybrid cars to express something about themselves, despite the price of gas. Tom Bell: Your examples involve consumers having settled on a meaning. But when people are contending to develop meaning, we could get chaos. Peter Jaszi: (Responding to Gerhart’s earlier invocation of “Napsterphobia,” where TM owners irrationally fear loss of control/rights.) What evidence can we use to define and address the problem? A: She’s seen it in her own licensing work – people want to lock up their content so tight it’s useless. William McGeveran, University of Minnesota Law School Rethinking Trademark Fair Use Abstract | Paper Contours of the project: Anytime someone uses a mark to facilitate saying something, we need to at least inquire about whether that’s legitimate and not within the scope of infringement/dilution, though some will perhaps ultimately be correctly suppressed. That puts descriptive and nominative fair use together. There are few really bad decisions when they get all the way to final judgment, but there’s a persistent chill on these types of uses despite the paucity of bad law. McGeveran argues that part of the problem is a failure to conceptualize the relevant defenses – the circuits disagree, the treatises disagree, and even copyright fair use looks better. Moreover, almost all the versions end up collapsing into likelihood of confusion inquiries – for example, this is true with “trademark use” requirements, as well as with nominative fair use. It ends up being more difficult to show nominative fair use than to show lack of confusion. And, as the previous sentence suggests, the burdens of proof get misplaced – if nominative fair use is a substitute for the confusion test, the defendant has to show it’s done nothing else to cause confusion. Relatedly, because these tests are fact-intensive and conflated with confusion, they’re not prone to resolution early on in a case, even summary judgment. So we need to restructure the law to allow early deployment and resolution, detached from fact-intensive considerations. Hard cases will still need further factual development, but that could decrease the chill. Sharon Sandeen: What about a Markman hearing type procedure? In her experience, it did help settle cases. A: That’s the kind of thing he’s thinking. There’s no need to change the FRCP, just doctrine and possibly judicial management practices. The substantive problem with our current defenses is that they depend so much on the facts. My Q: How do you cash this out? A: Use news reporting, use in political campaigns, etc. as explicit carveouts, as with dilution law. It may leave us with keywords as an issue that has to be thought out, but at least we can get rid of suits against artists and Ralph Nader. Farley: You have to answer a question that puzzled the Court in KP Permanent : What does “fair” mean? How can it be fair if there’s confusion? (I think the answer can be Scalia’s in Wal-mart : given the costs of sorting out the few confusing uses from the many nonconfusing ones in a defined subset of cases, the game isn’t worth the candle. This of course makes you rely on generalizations like “most uses in headlines aren’t confusing,” but if it’s good enough for Scalia, why isn’t it good enough for us?) A: This is a problem that shows up in the 9 th Circuit’s rule on remand in KP Permanent , where the court denies summary judgment – the remand makes the problem even worse by complicating the test for descriptive fair use. We must consider how our beautiful tests work structurally and procedurally, or they’ll suppress good uses. Ramsey: consider anti-SLAPP procedures as a model. And consider saying “we just don’t care about certain types of sponsorship confusion,” maybe on constitutional grounds. A: That could be good! Mike Carroll: rather than needing a coherent theory of fair use, we need a more robust theory of TM’s limiting principles outside of confusion. Then we can figure out how to clean up our standards and implement our normative limiting values. Lists of specific safe harbors have pernicious unintended consequences, as we’ve learned in copyright – floors become ceilings; courts draw negative inferences. At a minimum, safe harbors should be defined functionally. And we should also loosen the standards for declaratory judgment so people can get answers quickly. Mark McKenna , Saint Louis University School of Law Trademark Use and the Problem of Source in Trademark Law Abstract | Paper The search cost theory of TM law is not sufficiently rich to give us those limiting principles Carroll talked about. Our failure to find limiting principles once the competition requirement was abandoned has led to the development of the new contender, trademark use – defined roughly to mean a use that indicates source. (You could require affixation as in the statute, but that wreaks havoc on a lot of doctrine.) He’s emotionally on the side of Lemley & Dogan, but ultimately trademark use reduces to confusion – do consumers understand something as an indication of source? – so it doesn’t get us out of the problem. So far the only things that make irrelevant the basic question of source identification are from outside TM: Dastar and Traffix considerations of interference with copyright and patent regimes. This is a much bigger problem than TM use: everything in modern TM law is tied to a concept of consumer understanding of “source,” and the judicial interpretations and practical meanings of source have kept expanding. Even the start time of a baseball game – 7:11 – can indicate sponsorship, so consumers can rationally conclude that anything can. The only logical endpoint is complete control over a mark. But that’s so obviously bad that we need principles to deal with it. And this is search cost theory’s biggest weakness: once we decide consumer confusion is the harm we care about, as opposed to an indicator of some other harm, it’s hard to identify what the stopping point is and it’s very easy to characterize plaintiff’s claims in consumer protection terms. So let’s detach some defenses from confusion, increase the quantum of confusion necessary to support a claim, add a materiality requirement, and maybe other things. Farley: We really need to bring “source” back within some reasonable bounds. McKenna says TMs are functioning in the world more broadly than they used to, so of course the law needs to follow, but she’s not convinced. A: He thinks we can’t go all the way back to trade diversion, but he wouldn’t say we have to follow “source” as far as the market does in practice. We could define source differently for infringement purposes. It might actually matter to some consumer decisions if there is an affiliation between the plaintiff and defendant, and we should be willing to recognize it but perhaps presume irrelevance in certain circumstances. If people start to believe start times signify source, though, then maybe a team shouldn’t be allowed to pick a 7:11 start time to advertise itself. My Q: Nominative fair use, trademark use, and inherent distinctiveness can be seen as a bunch of presumptions, some rebuttable and some not. If we raise the evidentiary standards and don’t allow owner-favorable presumptions (such as occurred in Boston Hockey ), and we regulate surveys carefully, we might find there’s very little evidence of interference with trademark rights in many of these cases. Consumer perceptions, in other words, might not be as trademark-driven as we think. A: He agrees, but it doesn’t solve the problem of kicking cases out early. Calboli: Maybe you’re going back to technical TMs v. unfair competition. A: If he had confidence in our ability to limit the concept of unfair competition (requiring, say, competition ) he might endorse that. But he’s not sure that TM can be distinguished from unfair competition in that way. We need to define the harm agains which we’re protecting people.

Tags: consumer, tm, fair, confusion, style

Jasmine Abdel-Khalik , University of Missouri-Kansas City School of Law Is a Rose by Fraction Succeeding Fancy Furthermore a Rose? Disconnecting Dilution’s Xerox Checkup from Traditional Trademark Concepts Abstract | Paper Dilution is about the mark itself, unconnected to any goods; it’s about interfering with the story of the mark, rather than interfering with source identification. So how do you tell how similar a mark has to be before it dilutes? Schecter wanted protected marks to be coined, arbitrary, or fanciful, and they’d be protected against identical uses. The change in modern law, allowing acquired distinctiveness to suffice for dilution protection, is important because the mark owner is now adding its own story to an existing term, which means it fights against preconceived ideas – it’s prediluted. So we need to focus on the number of 3 rd -party marks out there, not just whether the claimant has acquired distinctiveness. That is purportedly captured by the fame requirement – it means your story has to have won out. Substantial similarity is the killer question. In the 9 th Circuit TREK and ORBITREK are apparently similar enough for dilution; query whether that would have been similar enough for Schecter. Another case: DOGIVA and CATIVA ; the court skipped past similarity, especially for the latter. Many other –IVA marks exist; there must be something more that triggers substantial similarity. Moseley said mental association wasn’t enough to demonstrate similarity, but didn’t say what would be enough. What about sight, sound, and meaning, the standard infringement trilogy? But with likelihood of confusion, you always look at the mark in context, which influences judgments of similarity. She would like to talk about uniqueness, which to her resembles copyright more than trademark – it’s about originality. Goldman: Invoking substantial similarity from copyright creates a bunch of problems; it’s so unpredictable. Perhaps there’s some more precise test (as copyright has in special subfields). Q: Arbitrariness alone is super-distinctive, but doesn’t deserve dilution protection without fame. If you push for uniqueness, don’t you lose MCDONALD’S and protect all those unknowns? A: She’d offer thinner protection to MCDONALD’S than to a unique mark. Q: The more famous the mark, the less you can dilute it. A: That ties in to the concept that it’s the death by a thousand cuts, not the first cut, that matters. McKenna: There’s a bunch of cognitive psych literature that says some marks are just unassailable. That leaves open what happens to the others. But it’s hard for TM owners to make a straight-faced claim about this – they have to say “we’re really famous, but not that famous.” I think very badly of TM law, but I think worse of copyright. Substantial similarity is just a crapshoot. But you could at least evaluate similarity on basic principles; copyright similarity is about market substitution, but that doesn’t make sense here, and that’s a function of the fact that we don’t know what the harm of dilution is. Irene Calboli: Why do you think the test should be different from the infringement test? Similarity should be required in both cases. What about the old technical/nontechnical trademarks division? (My thought: with confusion, less similarity can trade off with mark strength and relatedness of goods – CATIVA for candy is a different thing than CATIVA for cellphones. I don’t think we want that for dilution.) Lunney: Schecter was writing about technical trademarks, since they were the only ones that could be “TMs.” Why do you want a similarity screen before going to the blurring test? A: Because we’re going to make mistakes on blurring. Q: So why not just fix the blurring doctrine? A: Similarity as a screen allows better evaluation of risks by potential market entrants than a multifactor test. Sean Pager: What about the filtration procedure from copyright; could it be applied to the trademark in evaluating its position relative to other marks (applying semiotic theory)? My comment: The funny thing to me is that when marketers talk about unique brand stories, they often speak in one-word terms – this brand is about YOUTH, or POWER, or whatever. And those are the farthest thing from unique, even though the brands themselves are distinctive and powerful. So seeing dilution as about preserving brand stories makes dilution even more puzzling to me. Katja Weckstr

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