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What constitutes trademark dilution?

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Once the prerequisites for a dilution claim are satisfied, the owner of a mark can bring an action against any use of that mark that dilutes the distinctive quality of that mark, either through “blurring” or” garnishment” of that mark; unlike an infringement claim, likelihood of confusion is not necessary. Blurring occurs when the power of the mark is weakened through its identification with dissimilar goods.

For example, Kodak brand bicycles or Xerox brand cigarettes. Although neither example is likely to cause confusion among consumers, each dilutes the distinctive quality of the mark. Garnishments occur when the mark is cast in an unflattering light, typically through its association with inferior or unseemly products or services.

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Although likelihood of confusion and dilution are the two main trademark-related causes of action, there exist a number of additional state-law causes of action under state unfair competition law: passing off, contributory passing off, reverse passing off, and misappropriation.

Passing off occurs when the defendant tries to pass off its product as the plaintiffs product. So, for example, manufacturing computers and claiming that they are made by Apple Computer, Inc. Contributory passing off occurs when the defendant assists or induces another (typically a retailer) to pass of its product as the plaintiffs product.

So, for example, inducing a computer store to represent that the computers are made by Apple, when in fact they are not reverse passing off occurs when the defendant tries to pass off the plaintiffs product as its own so, for example, taking a computer made by Apple, removing the label, and putting on a different label.

Finally, misappropriation is a highly unstable, but potentially fruitful source of additional trademark-related claims.

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