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Many trademark infringement cases don’t involve outright theft of a trademark. Responsible companies don’t try anything that obvious. A more common scenario involves a type of infringement known as “dilution.”
Often, those who end up as defendants in these cases had no intention of infringing on another company’s trademark. However, companies that are protective of their brand – as they have every right to be – believe that any similarity could harm their brand’s uniqueness or reputation.
How is “dilution” defined?
The concept of trademark dilution is nothing new. It was described in a 1927 Harvard Law Review article as a “whittling away of a famous trademark’s reputation to the point that its identity is lost forever.”
Our trademark laws in the U.S. recognize two types of dilution – blurring and tarnishment.
Blurring
This occurs when a company or other entity uses a mark that’s similar enough to a well-known trademark that it could “dilute” the original trademark’s uniqueness or confuse consumers into believing that it’s related.
Apple Inc. is notoriously protective of its logo. The corporation has taken action against even small entrepreneurs who use apples (or even pineapples) in their branding.
Tarnishment
This is when the similarity of a mark to a widely recognized trademark could be considered damaging to the image and reputation of the well-known trademark.
Like dilution, there’s a concern about confusion by the public but with an added layer of negativity – or at least something contradictory to a company’s image. If a cannabis business, for example, marketed a line of products using a logo similar to the famous Apple logo, that could potentially be considered tarnishment.
Even individuals and start-up companies have found themselves at the wrong end of a trademark infringement claim by a large company that doesn’t hesitate to stomp out dilution of its brand wherever it pops up. If you find yourself in this situation, it’s important to have legal guidance.