ClickZ News says lawyers are “Giving Up on Web Trademark Infringement”:
“Trademark dilution is death by a thousand cuts,” said Joe Dreitler, partner at Frost Brown Todd. “And if there are a thousand people doing parodies of Louis Vuitton, at what point [does it occur]?”
It’s almost as if the claim of trademark dilution, regarding which we have long been very dubious, brings its own punishment: It is now so relatively easy for a truly famous mark (such as Vuitton, which we have represented) to make a meritorious dilution claim and yet it is even easier to dilute a trademark on the Internet. And the bigger the trademark the more dilutable… the more it cries out for dilution… the more lawyers and trademark owners trip over themselves trying to figure out what to do about it. As this article demonstrates, they’re increasingly frustrated over their inability to do anything as the truly anarchistic nature of the Internet defies enforcement regardless of budgets or ambitions.
Probably the smart thing would be to forget about dilution, which the world lived without since Creation, and focus on tight brand building and enforcement against real infringements. But of course that is a course the trademark owners are constitutionally incapable of considering. Are they on the verge of making utter fools of themselves in the RIAA “constant nuclear option” enforcement — I mean, “enforcement” — mode? Probably. And law firms will profit all the way, which is the up side. (You think I meant that as a bad thing?!)
Originally posted 2010-11-05 17:11:33. Republished by Blog Post Promoter
Ron, my reaction is: is this guy for real? Since when is parody EVER dilution?
Dilution to me means whittling away the power of a word (or symbol) to function as a trademark. Look at the classic examples. If someone started selling “Buick Pianos,” even though pianos are far afield from cars (and hence there might not be a likelihood of confusion), still the power of BUICK to act as a unique source signifier is lessened.
Similarly, if someone opens a house of ill-repute and names it the “Lil’ Buick Whorehouse,” then the trademark power of BUICK has been tarnished.
Parody, on the other hand, is a form of criticism. It is intended to evoke the target and make fun of it. When someone made a dog-toy and named it CHEWY VUITTON, they intended to make fun of the Louis Vuitton fashion house. Yes, that hurts its business, but in my mind that is not “dilution” any more than a bad review by WWD of Vuitton’s 2010 Fall Collection is dilution.
(I think this all got started with the famous Coca-Cola – concaine poster, which was held to be dilution by tarnishment years ago. Coca-Cola Co. v. Gemini Rising, Inc., 346 F. Supp. 1183 (E.D.N.Y. 1972). I think today that would be held to be parody)
What can I tell you? There’s a lot of that going around. Frankly even I think the Chewy Vuitton case — which I imagine he’s referring to — was a travesty.
As a lawyer,I highly appreciate your research and the way you explained facts.