Dilution is another theory of infringement (see Infringement) that is available and one which has nothing to do with confusion. The widely cited example is the case of Eastman Photographic Materials Co. v. Kodak Cycle (Eng. 1898). Eastman is obviously that brand recognized as "Kodak" and the other party sold bicycles. The court was well aware that there was no likelihood of confusion but nonetheless granted Eastman an injunction on the grounds that the use of "Kodak" on bicycles would harm Eastman, even if there was to possibility of confusion as to source.
In a more recent U.S. case, Mortellito v. Nina of California (S.D.N.Y. 1972), the court succinctly stated the harm caused by dilution as follows:
The obvious question here is what marks are entitled to this kind of protection? The Federal Trademark Dilution Act of 1995 (FTDA) added a dilution statute to the Lanham Act (see section 1125(c)), and helps answer this question. Essentially, this Act codifies protection from dilution of "famous marks." What exactly was Congress attempting to fix with the FTDA? An excerpt from the legislative history of the act may shed some light:
The concepts of trademark "blurring" and "tarnishment" are treated as a subset of dilution (see The Coca-Cola Company v. Gemini Rising Inc. (E.D.N.Y.1972)).
Comments: The USSC, in the case of Moseley v. V Secret Catalogue, Inc. (2003), reversed a summary judgment in favor of Victoria's Secret, by holding that the evidentiary requirements of the FTDA had not been met. The Court stated as follows:
Many commentators believe that the USSC has essentially taken the "teeth" out of the FTDA ( see Deere & Company v. MTD Holdings, Inc. (S.D.N.Y. 2003); Savin Corporation v. The Savin Group (S.D.N.Y. 2003)).
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