Making IP more difficult to prove infringement weakens protection
Mandel ’18 [Gregory N.; January; Dean & Peter J. Liacouras Professor of Law, Temple University; Minnesota Law Review, “Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress,” 102:803]
The two most prominent trademark cases decided during this time period were likely Moseley v. V Secret Catalogue, Inc.63 and Dastar Corp. v. Twentieth Century Fox Film Corp.64 In Moseley, Victoria’s Secret sought to enjoin the Moseleys from using the name “Victor’s Little Secret” for a store selling lingerie and adult novelty items.65 Victoria’s Secret argued that the Moseley’s use of “Victor’s Little Secret” would dilute Victoria’s Secret’s brand.66 The district court and circuit court held that the two names were sufficiently similar such that Victor’s Little Secret would dilute Victoria’s Secret brand through tarnishment.67 The Supreme Court reversed, holding that dilution requires proof of “actual dilution,” not simply the possibility or probability of dilution.68 This result weakened protection by making dilution more difficult to prove for trademark owners.69