According to a World Intellectual Property Organization (WIPO) estimate, 13.4 million trademark applications were submitted globally in 2020. This is especially intriguing in light of the present pandemic crisis and the fact that the quantity of trademark applications was unaffected. The number of trademark dilution and infringement cases has significantly increased along with the intensity of trademark activity.
Although there is less knowledge about trademark dilution rights than there is about trademark infringement, it is nevertheless vital to remember that trademark dilution can be just as bad for a business. Our most recent post addresses the idea of trademark dilution, how it differs from trademark infringement, how it manifests itself in everyday business operations, and how it should be interpreted.
What is Trademark Dilution?
Trademark As the first stage of trademark infringement, dilution protects the owner of a mark from uses that can lessen the distinctiveness of a well-known trademark. In contrast to trademark infringement, dilution does not require proof of a probability of confusion in order to protect the mark. Instead, all that is required is for a third party to utilise a well-known mark, diluting the trademark's superiority. Only famous marks are protected against dilution under the trademark dilution act's provision. When deciding whether or not to recognise a mark, the following factors are taken into account:
- The scope and duration of mark use
- the volume and duration of brand promotion
- The regions where the mark has been applied
- The degree to which the brand is distinctive (either due to its inherent characteristics or to acquired distinctiveness)
- The degree to which the mark is recognisable
- The manner in which the product has been distributed and marketed
- using a trademark without permission
- Whether the trademark has a registration
Generally speaking, a mark must have attained wide public recognition in order to be deemed "famous." The symbol is easily recognised if it enjoys widespread public familiarity. Brand names like Nike, Coca-Cola, Colgate, Sony, Ikea, etc., for instance, are visually well-known names throughout the world and would logically qualify as renowned trademarks.
Let's talk about trademark dilution's causes now that we are familiar with its definition and its range.
How Trademark Dilution Occurs?
1. Trademark blurring: This happens when a well-known mark's identity is compromised or destroyed as a result of unauthorised usage by a third party. The possibility that a mark will serve as a distinctive identifier of the owner's product is decreased by a third party's use of the mark, which hurts the product's ability to sell. When many third parties submit applications, register trademarks, or use confusingly similar or identical marks, trademark infringement occurs.
2. Trademark tarnishing: A trademark is tarnished when the challenged mark in question associates the original mark with subpar goods. Additionally, the contested mark depicts the original in an offensive setting that is probably not favourable to the owner's product. Since there are many dishonest makers and merchants in nations like India, China, Bangladesh, etc., trademark tarnishment is a typical issue. They are prepared to offer the product at a low price while still using the original mark, significantly harming the owner's brand equity.
3. Trademark freeriding: When a trademark owner begins to capitalise on the advantages of a favourable association between the owned mark and a well-known third-party mark, this is known as trademark freeriding. Many nations also refer to trademark freeriding as parasitic exploitation. Therefore, freeriding is viewed as a criminal violation in many nations around the world, including the European Union (EU). Freeriding, however, cannot be regarded as an injury or harm under trademark law because the defendant's profits do not result in the plaintiff's suffering a loss. Examples of trademark freeriding include L'Oréal/Bellure, Red Bull and the Bulldog, and others.
Types of Marks on the Level of Dilution
1. Generic Trademark: These trademarks become recognisable as belonging to a specific class of goods or services. Due to the term's widespread use or underlying importance in opposition to the trademark holder's goals, a strong association between it and the relevant class of services develops. These types of marks cannot be registered unless they have distinguished themselves via regular use. Generic trademark usage is comparable to diluted trademark use. Apple (consumer electronics), Xerox (photocopier), cello tape (sticky tape), Tupperware (home goods), Band-Aid (adhesive bandages), and others are some of the best examples.
2. Descriptive Trademarks: These are expressions that specify the features of a good or service that the mark applies to. It's comparable to using an adjective. Because they fall under the absolute grounds of refusal, descriptive trademarks are not registrable and are typically rejected by the trademark office.
3.Suggestive Trademarks : Suggestions or references to the actual goods or services are included in suggestive trademarks, which are not descriptive in nature. Customers who utilise these trademarks must be imaginative. Although done indirectly, a suggestive trademark suggests a feature or attribute of goods and services for offering.
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