Washington, D.C. | Public Knowledge issued the following statement in response to the United States Supreme Court's decision in Moseley v. V Secret Catalogue:
We are pleased that the Court has struck the right balance between the need for a trademark holder to protect its investment, and the ability of individuals and small businesses to be creative, innovative and competitive in developing their own business names and trademarks. In particular, we applaud the Court's determination that, to prevail in a trademark-dilution case, the owner of a famous trademark such as “Victoria's Secret” must produce evidence showing that a competing mark has “lessen[ed] the capacity of a famous mark to identify and distinguish goods or services?” We also believe the Court is correct to hold the mere fact that consumers may “mentally associate” a junior mark with a famous mark is not sufficient to establish an actionable dilution under the Federal Trademark Dilution Act (FTDA) – that, in short, there must be a real dilution, not merely a theoretical or speculative one.
Although this case involved commercial actors, the implications of this case reach beyond the commercial realm, touching on freedom of speech (including speech that lawfully criticizes or parodies big companies). For example, a citizen who criticizes large corporations through parodic or dismissive use of those corporations' trademarks can now rest a little easier knowing that, so long as there is no actual evidence that their otherwise lawful speech diminishes a trademark's ability to identify its owner's goods and services, he or she is far more likely to prevail if threatened or sued under the FTDA.
Public Knowledge is a public-interest advocacy and education organization that seeks to promote a balanced approach to intellectual property law and technology policy that reflects the “cultural bargain” intended by the framers of the constitution. More information available at: http://www.publicknowledge.org.
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