Intellectual Property

What Does “Dilution Of A Trademark” Mean, And How Can You Avoid It?

If you see another company using your trademark, there are reasons more than just principle that should compel you to take action: failing to do so could put the validity of your registration at risk.

Trademark dilution occurs when another entity uses another company’s trademark in such a way as to cause the registered mark’s distinctiveness to become generic. In other words, when the uniqueness of the mark becomes lessened, the requirement of “uniqueness” for registration of the mark in the first place disappears, as generic marks are not ripe for registration.

There are three different types of possible dilution:

  1. “Blurring”: when a mark’s distinctiveness is harmed because it becomes or is likely to become associated with a similar mark or trade name.
  2. “Tarnishment”: when the mark’s reputation is harmed through association with a similar mark or trade name that is “unsavory” or used in connection with inferior products or services.
  3. Freeriding” or “Freeloading”: when a mark owner receives the benefit of a positive association between that mark and a well-known mark. 

How do you obtain dilution protection?

A mark’s owner can simply show a likelihood of dilution– no specific evidence of dilution is needed. Courts will consider factors such as the degree of similarity and distinctiveness of the mark, how the original mark is used, the intent of the named infringer, and the perception of the dilution in the eyes of consumers.

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