Trademarks: What is “Dilution by Tarnishment?”

There are a  number of naughty behaviors that infringers can take with regard to famous marks. Famous marks are a popular target for infringers, because the marks are well-known, and therefore attractive to those who would like to trade on the goodwill associated with these marks, or otherwise be “cute” and imitate these marks.

The owners of famous brands like TIFFANY, APPLE, GOOGLE and NIKE spend an enormous amount of money promoting, advertising, and policing their brands, and courts have given broad protections to famous brands due to their consumer recognition and the vast amount of resources that the brand owners have poured into these brands. Because famous brands get such broad protection, it’s always a bad idea to use anything similar to a famous brand, no matter how “cute” or “catchy” you think it might be.

One cause of action that the owner of a famous brand has against an infringer is that of “dilution by tarnishment.” Dilution by tarnishment involves the use on inferior goods of a mark that is confusingly similar to a famous mark, thus lowering the esteem of the famous mark through its association with shoddy goods. This also applies where the goods of the infringing mark are somehow unsavory or not in keeping with the image of the famous mark that is being infringed.

For example, let’s suppose that a strip club adopts a robin’s egg blue and white theme with the name “Tiffany’s.” Tiffany and Company, owners of various trademarks for robin’s egg blue packaging would swiftly move to end such use. Because the TIFFANY mark is famous, and the robin’s egg blue packaging is strongly associated with Tiffany and Company, the use of those iconic colors on a strip club would be considered dilution by tarnishment; Tiffany and Company does not want its high-end brand associated in any way with industries or activities that are unsavory or offensive to a large percentage of the population. The TIFFANY brand has a strong association with luxury, romance, good taste and class, and the use of similar colors on a strip club would associate the TIFFANY brand with an activity that even the most broad-minded adults would consider unwholesome and not in keeping with the TIFFANY image.

For this reason, the owners of famous marks swiftly and aggressively pursue any attempt to trade on the goodwill they have spent decades and millions of dollars to create. I strongly recommend that entrepreneurs who are adopting new brands take care to stay well away from any brand or logo that looks, sounds, or gives the commercial impression of being associated with any famous brand.

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