Trademark Dilution is a cause of action available to trademark owners to prevent another individual or businesses from using an identical or substantially similar trademark. Unlike trademark infringement, however, trademark dilution can be found even when there is no likelihood of confusion between the parties’ trademarks or products.
The Federal Trademark Dilution Act
The Federal Trademark Dilution Act was enacted to protect trademarks from unauthorized use or infringement that would impair the trademark distinctiveness or harm its reputation. A claim for federal trademark dilution can rise if there is actual dilution or if there is a likelihood of dilution to occur, in which case an injunction may be granted to the trademark owner. This gives trademark owners not only reactive measures to protect their trademark, but also preventative measures to help ensure against any dilution before it occurs. Many state dilution laws also protect against both the likelihood of injury to business reputation (tarnishment – see below) and the likelihood of dilution of the distinctiveness of the trademark (blurring – see below).
Types of Trademark Dilution
Trademark Dilution of a trademark typically takes one of two forms: tarnishment or blurring. “Tarnishment” is the term used to describe injury to a trademark owner’s business reputation when a defendant uses an identical or substantially similar trademark in connection with a shady product or service. Here, the trademark’s commercial value is diminished by the public’s negative associations with the trademark itself.
“Blurring” is the term used to mean dilution of the distinctive, unique quality of a trademark. Blurring occurs when an infringer uses a trademark in commerce which is identical or substantially similar to the trademark owner’s distinctive or famous trademark. Under a dilution legal theory, blurring reduces the selling power of the trademark owner’s trademark by reducing the public’s overall perception of the trademark as the source of something unique and distinctive.