Non-Likelihood of Confusion Causes of Action

• Jurisdiction: Maryland

VIII. NON-LIKELIHOOD OF CONFUSION CAUSES OF ACTION

A. Dilution

1. Generally

Trademark infringement under Section 1125(a) results from confusion as to origin, sponsorship, or approval. Dilution is not based on confusion, and competition is hardly ever implicated in a dilution case. Congress has codified¹¹⁰ this "dilution" to occur when the infringer's use will reduce the owner's ability to use the mark as a distinctive indicator of goods and services. It occurs through blurring or tarnishment. Blurring is the watering down of the strength of the mark. Section 1125(c) requires as a prerequisite for dilution that the mark be "famous" throughout the country.¹¹¹ A 2006 revision to Section 1125(c) made clear that dilution claims are based on likelihood of dilution by blurring or tarnishment, and do not depend on the existence of competition between the parties.

2. Fame

Despite an earlier iteration, the Lanham Act is now clear that for a mark to be famous, it must have fame throughout the United States,¹¹² and not just in one region of the country or among one group of consumers. The statute sets out factors to consider in determining fame, including adverting expenditures, the breadth of distribution throughout the country, and how the mark is recognized. Major national brands can make use of this statute, while local users cannot.¹¹³

3. Blurring

When a mark is famous, it is instantly recognized as being identified with its...