Trademark dilution is the weakening of a famous mark’s ability to identify and distinguish goods or services, regardless of competition in the marketplace or the likelihood of confusion. Dilution typically occurs as the result of blurring or tarnishment of the famous mark. It is similar to the concept of passing off, which involves misrepresenting one’s goods as those of another. Misrepresentation, however, is not an essential component of dilution.
The law protects famous marks from subsequent marks that may be confusingly similar. When claiming confusion, one must show that the marks being compared are similar in appearance, sound or meaning, combined with evidence that they are associated with identical, competing similar or related goods or services. Under this analysis, similar and possibly even identical marks used with distinguishable goods/services or goods/services traveling in different channels of trade) may coexist in the same market.
Te concept of dilution developed from the idea that because some marks are so well-known and famous, they deserve an extra level of protection beyond the likelihood-of-confusion analysis. Dilution theory seeks to prevent the coexistence of a mark that is sufficiently similar to a famous mark, regardless of the goods and/or services associated with the allegedly diluting mark. Proponents of the theory argue that it protects the goodwill associated with a well-known mark (which may have been built up over many years) and it reduces consumer confusion. Critics of the dilution theory allege, however, that stringent antidilution laws can stifle market competition.