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Trademark Dilution

How to Prove Dilution

How to Prove Dilution

The Dilution Act Blurring

Occurs when confusion is caused among consumers because the similarities between two trademarks is too great and the public view of the companies is altered. If consumers begin to not see the trademarks and their companies as unique, blurring as occurred.
Tarnishment
Tarnishment occur when a similarly looking trademark and the company offer unsavory goods or services. The company could also offer inferior products. This effects the plaintiff because some people in the public are relating the inferior products to the plaintiff’s company due to the similarities in their trademarks.
Civil trials regarding trademark dilution do not require the plaintiff to show trademark dilution took place beyond a reasonable doubt. If the judge believes either a blurring or tarnishment of trademarks took place, the judge will rule in favor of the plaintiff. The defendant will likely have an injunction placed against the use of their trademark.

What are Some Remedies for Dilution?

What are Some Remedies for Dilution?

Remedies for trademarks that have been diluted, either by means of blurring or tarnishment, typically only offer injunctions against the plaintiff. The plaintiff will have to cease using the trademark responsible for diluting another company. 
The judge may require a written statement be prepared and submitted by a future date, which should detail how the plaintiff plans to remove any illegal trademarks from their products or stores. It is rare that anything other than an injunction is placed on the defendant. 
The remedies for trademark infringement are a bit more harsh than dilution. However, it is important to note that if intentional dilution takes place, similar remedies to trademark infringement may be required to pay by the plaintiff.
If the plaintiff can prove that the defendant willfully attempted to trade based on the reputation of the plaintiff, or willfully looked to bring down the reputation of the plaintiff by copying their trademark, trademark protection laws allow stricter penalties against plaintiffs. 
If these things can be proven collaboratively, monetary damages may be awarded to cover court costs, forfeit profits gained as a result of dilution, and help pay for any losses suffered by the plaintiff as a result of the dilution. Trademark protection laws typically do not allow any monetary damages to be awarded for state registered trademarks, only those that are federally registered.

Works Covered Under Dilution Protection

Works Covered Under Dilution Protection

The court system uses a set of criteria to determine if a trademark is famous enough to receive dilution protection.
1. The length of time the trademarked thing has been existing.
2. The duration of time that advertising for the trademarked thing has been in circulation.
3. The geographic area the trademark is used.
4. How distinct the trademarked thing is.
5. How recognizable the public views the trademarked thing as.
6. The way in which the trademarked thing is sold and distributed.
7. The amount that third parties use the trademarked thing.
8. Whether the mark was federally registered.
After examining a case, a judge will use the above criteria to decide if a trademark is famous enough to enjoy the protection offered by the Dilution Act of 1995Lanham Act.