Dilution's Savin Grace?

wishes to depict your attending to a recent US case. Those of yous who accept been next US police volition realise that the Supreme Court delivered a conclusion concluding year, Mosley v V Secret, which stated that, inwards gild to succeed inwards a Federal dilution claim, claimants must evidence actual dilution rather than mere likelihood of dilution. However, the courtroom made a rather cryptic comment:

“It may good be, however, that right away evidence of dilution such equally consumer surveys volition non last necessary if actual dilution tin reliably last proven through circumstantial evidence–the obvious example is i where the junior too senior marks are identical.”

There has been declaration close whether this way that where the parties' marks are identical, this inwards itself constitutes circumstantial evidence of dilution too inwards that province of affairs alone, in that place is no demand to evidence actual dilution OR whether circumstantial evidence tin simply last used to evidence actual dilution if the marks are identical. In Savin v Savin, the District Court opted for the latter reading. However, the Savin court’s conclusion was overturned past times the Second Circuit Court of Appeals on 10 December, which stated that where marks are identical, dilution tin last assumed. Nevertheless, this presumption simply applies where marks are identical and, according to the Second Circuit, the examination for the identity of marks must last a rattling strict i – fifty-fifty marks containing the same words but inwards dissimilar typefaces may non run into it.

thinks that this conclusion has an air of swings too roundabouts close it. While the actual dilution measure has overstep away to a greater extent than lenient, claimants must undergo the hard chore of showing that their marks are identical inwards gild to create goodness from this loosening of the test. Merpel wonders what the set would last inwards the European Union – for certain in that place are hints (such equally the Advocate General inwards General Motors v Yplon) that actual dilution is needed for infringement inwards the EU, but no idea seems to accept been given equally to whether in that place would last a lesser measure for identical marks.

Lots of give-and-take of actual dilution here