Dilution in the United States and European Union (and beyond) Part II: testing for blurring

Abstract

Legal context. Dilution by blurring has often been accused of being a vague concept which is difficult to understand and which has no sensible limits. Mindful of the need for certainty in this area, the US Senate and House of Representatives have passed the Trademark Dilution Revision Act 2006. This Bill (which is discussed more generally in Part I) includes a definition of blurring and a six-point test for blurring. Meanwhile, the European Union has been steadily building up jurisprudence in this area. Key points. This part of the article focuses on dilution by blurring, considering how blurring is defined, how it is tested for and whether US and EU blurring protection is in compliance with the jurisdictions’ international obligations in this area (discussed in Part I). In particular, it considers the new definition of, and test for, blurring under the US Trademark Dilution Revision Act 2006, and compares the position under that Bill to the situation in the EU. Practical significance. Assuming that it enters into law, the Revision Act 2006 has serious implications for the proprietors of famous marks doing business in the US. This article will inform the owners of such marks what protection they will benefit from and how this will differ from the protection they will get in the EU.