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Conclusion
Why Not?
Uniqueness Diminished (dilution by blurring)
Generic?
Insufficient secondary meaning
for a descriptive mark?
The association is between the mark and ALL products. The association is NOT between the mark and a certain producer
trademark infringement:
Conclusion
If "yes" to either or both:
There is Trademark Dilution
Business is economically harmed
due to a wrongful/deceptive
business practice
Two additional ways to prevail on
Trademark Dilution
1. Uniqueness is Diminished, OR
2. Tarnished Image
NO
Conclusion
Trademark Dilution is still possible
Tarnished Image
Is there CONFUSION
Lanham Act - balancing factors
NO
Unfair Competition Categories
Is there a valid trademark?
(appearance, pronunciation, etc.)
(same geographic market?)
(parody?)
(intent to benefit from first mark holder's rep?)
(intent to harm first mark holder's business?)
Right to use a symbol or
word(s) associated with a good
Yes
Has the mark been copied or imitated?
Or, are there two (or more) similar marks?
YES
1. Trademark Infringement
(Jordache, Kellogg, Hanover)
2. Trademark Dilution
(Jordache)
3. Misappropriation of
Trade Secret (DuPont)
4. Misappropriation
of Work Product (INS, Kellogg)
Property
Intellectual Property Review
Professor Anderson
Conclusion
trademark dilution:
dispersion of identity and hold on the public mind of the mark by its use upon other goods
Misappropriation:
Inappropriate borrowing of someone else's product that required time, labor and resources
Confusion in Trademark Infringement
Is the product a trade secret?
1) derives its economic value from being a secret, and
2) the holder has taken reasonable steps to maintain secrecy
Confusion in Trademark Dilution
YES
NO
1) Was the trade secret discovered
by improper means, OR
2) Was there a breach of confidence
Was there inappropriate borrowing?
Examine the nature and character of the business
Examine the right of the parties between themselves
Conclusion
If "yes" to either, then there has been
misappropriation of a trade secret
Conclusion
The balancing test will indicate if there is misappropriation of work product