Actual Harm And Likelihood Of Dilution

It is quite long time before trade mark dilution was at last accepted into the law. However, trade mark dilution is still a hot issue full of debates. There is great difference in the trade mark dilution law application even in the country with comparatively well developed trade mark dilution laws like USA. From the USA legislation on and application of trade mark law, we can with no exaggeration draw the conclusion that no law system is so patchy and mysterious like trade mark law. Chapter one is emphasized on the definition of trade mark dilution, the occurrence & development of the dilution theory, two typical ways of trade mark dilution and brief introduction on the difference between trade mark dilution and the trade mark infringement. Chapter 2 starts from the ever involving function of trade mark, it elaborates on the close relation between dilution and the function of trade mark. Further this chapter goes on with the connection between the distinctive of a mark and dilution. At last, two cases "Victoria's Secret"& "Nabisco biscuit"have been introduced and two seemingly contradicting standards have been derived from these two cases respectively, "the actual harm standard"and the "likelihood of dilution standard". Chapter 3 states that "likelihood of dilution"should be applied when the existence of trade mark dilution needs to be decided. First this chapter justifies the possible reasons for the occurrence of different two standards for dilution application: on one hand there are issues need to be solved in the dilution theory and on the other hand , from the destroy of the trade mark distinctiveness, the damage of trade mark function to the weakening of the trade mark's selling power, the process is not unique and the cause and effect can not be demonstrated sufficiently by the evidence in reality. Then from what is real harm in the "real harm standard"and dilution is a process that can not been seen and that happens not overnight, a conclusion has been drawn that the "real harm standard"is hardly applicable. Further, after a look at what will happen when the "likelihood of dilution"is applied, the author put forward the suggestion that limits should be made on the application of the "likelihood of dilution"standard: dilution should be applied only to those famous trade marks and marks with real distinctiveness; dilution should be applied only when similar or same trade mark has been used on the goods and service quite different from the diluted trade mark owner's; last as per the different function of the trade mark, the chapter touches on to what extent should the "likelihood of dilution standard"be applied.