Trademark FAQ: What Is Dilution?

Trademark owners can protect their intellectual property by bringing a trademark infringement action. This post highlights another valuable legal tool—an action for trademark dilution.

Trademark dilution occurs when a third party’s use of your trademark impairs the mark’s distinctiveness. Unlike infringement, it does not matter whether or not the mark is used on a competing product or in a way that is likely to cause customer confusion.

Under federal law, a dilution claim can be brought only if the mark is “famous.” In determining whether a mark is famous, the courts will evaluate the following factors:

  • The degree of inherent or acquired distinctiveness;
  • The duration and extent of use;
  • The amount of advertising and publicity;
  • The geographic extent of the market;
  • The channels of trade;
  • The degree of recognition in trading areas;
  •  Any use of similar marks by third parties; and
  • Whether the mark is registered.

In addition, most states have laws against trademark dilution, which do not require a mark to be famous.

How I Can Help

Of course, this post provides only a broad overview of trademark dilution. If you believe your trademark is being diluted, it is advisable to consult with an experienced intellectual property attorney such as myself.


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