Is there tarnishment of the Victoria’s Secret senior mark by the Moseleys use of the junior marks Victors Secret and Victors Little Secret?
For each case, provide at least one reference in APA format. Each answer should be double-spaced in 12-point font, and the response to each question should be at least 250 words in length.
Critical Legal Thinking Cases
Dilution of a Trademark: V Secret Catalogue, Inc. and Victorias Secret Stores, Inc. v. Moseley
605 F.3d 382, Web 2010 U.S. App. Lexis 10150 (2010) United States Court of Appeals for the Sixth Circuit
The phrase likely to cause dilution used in the new statute significantly changes the meaning of the law from causes actual harm under the preexisting law.
Merritt, Circuit Judge
Facts
Victoria’s Secret is a successful worldwide retailer of women’s lingerie, clothing, and beauty products that owns the famous trademark Victoria’s Secret. A small store in Elizabethtown, Kentucky, owned and operated by Victor and Cathy Moseley, used the business names Victors Secret and Victors Little Secret. The store sold adult videos, novelties, sex toys, and racy lingerie. Victoria’s Secret sued the Moseleys, alleging a violation of the Federal Trademark Dilution Act of 1995. The case eventually was decided by the U.S. Supreme Court in favor of the Moseleys, when the Court found that there was no showing of actual dilution by the junior marks, as required by the statute. Congress overturned the Supreme Courts decision by enacting the Trademark Dilution Revision Act of 2006, which requires the easier showing of a likelihood of dilution by the senior mark. On remand, the U.S. District Court applied the new likelihood of confusion test, found a presumption of tarnishment of the Victoria’s Secret mark that the Moseleys failed to rebut, and held against the Moseleys. The Moseleys appealed to the U.S. Court of Appeals.
Issue
Is there tarnishment of the Victoria’s Secret senior mark by the Moseleys use of the junior marks Victors Secret and Victors Little Secret?
Language of the Court
The phrase likely to cause dilution used in the new statute significantly changes the meaning of the law from causes actual harm under the preexisting law. The burden of proof problem should now be interpreted to create a kind of rebuttable presumption, or at least a very strong inference, that a new mark used to sell sex-related products is likely to tarnish a famous mark if there is a clear semantic association between the two. In the present case, the Moseleys have had two opportunities in the District Court to offer evidence that there is no real probability of tarnishment and have not done so. Without evidence to the contrary or a persuasive defensive theory that rebuts the presumption, the defendants have given us no basis to reverse the judgment of the District Court.
Decision
The U.S. Court o
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