Trademark
Hal Poret: Trademark Dilution Revision Act breathes new life into dilution surveys
PLI: What does the Trademark Dilution Revision Act mean for the future of dilution surveys?
HAL PORET: The history of trademark dilution surveys – much like the
history of dilution law in general – is one of uncertainty,
"confusion," and error, as courts, commentators, and researchers have
struggled (often unsuccessfully) with how a survey could properly
measure dilution as that concept has been variously defined and as it
has evolved over time. In contrast to likelihood of confusion surveys,
very few courts have offered guidance on how a proper dilution survey
might be constructed and fewer still have accepted and given
significant weight to dilution surveys.1
This lack of a general consensus on acceptable designs for dilution
surveys has been exacerbated by the changing legal landscape, as the
Supreme Court in Moseley v. Victoria Secret Catalogue2
cast doubt on much of dilution law that had come before it and, now,
the Trademark Dilution Revision Act ("TDRA") has over-ruled the law of Moseley in certain key respects. A relatively small number of dilution surveys have been attempted since Moseley and only a handful of courts have considered dilution surveys after Moseley.
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