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Blurring
Also see "Dilution".

The Federal Trademark Dilution Act (FTDA)of 1995, which protects famous marks from uses that dilute their distinctiveness, even in the absence of any likelihood of confusion or competition, became effective on January 16, 1996.

Definitiion of Dilutiuon

The new act defines the term "dilution" as "the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of

        (1) competition between the owner of the famous mark and other parties, or

        (2) likelihood of confusion, mistake, or deception."

Courts have previously found that dilution can occur as a result of either "blurring" or "tarnishment". "Blurring" typically refers to the "whittling away" of distinctiveness caused by the unauthorized use of a mark on dissimilar products; while "tarnishment" involves an unauthorized use of a mark which links it to products that are of poor quality or which is portrayed in an unwholesome or unsavory context that is likely to reflect adversely upon the owner's product. The legislative history suggests that both of these concepts are encompassed within the new law. In addition, the legislative history cites, as examples of the uses which would fall within the new law, the mark DUPONT for shoes, BUICK for aspirin and KODAK for pianos.

However, the Act makes clear that certain actions will not be subject to the provisions of the Act. Specifically, the Act states that fair use (such as comparative advertising), noncommercial use (such as noncommercial web pages), and all forms of news reporting and news commentary (which would apparently include reporting and commentary appearing on the Internet) would not constitute dilution under the Act.

Examples of marks which will clearly be considered "famous" would be: XEROX, KODAK, COCA-COLA, and REEBOK. It would be much harder to protect a mark like APPLE (computers) against dilution, since the term APPLE has been used in connection with other well-known products, such as the Beatles records, and has been used by numerous other business. Of course, the mark APPLE is still protected against trademark infringement when likelihood of confusion can be established.

You could be liable for using another company's trademark if you are blurring or tarnishing their mark under the state and/or federal dilution laws. Fortunately, dilution law only applies to "famous" or "well known" trademarks.

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