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Trademark Infringement and Dilution are Different - It’s Simple

Trademark infringement and trademark dilution are separate causes of action embodied in the Lanham Act that are intended to redress distinct wrongs. Since the enactment of the first federal dilution statute, however, the vast majority of complaints that plead a dilution cause of action have also brought infringement causes of action, and the disposition of the cases have been typically in lock step -- with the plaintiff either winning or losing both claims. There should be no such overlap between infringement and dilution, and both Congress' initial amendment to the Lanham Act adding a dilution cause of action and its rewrite of the dilution statute eleven years later support this construction. Indeed, where infringement analysis ends, dilution begins. Our present predicament, where dilution is almost redundant of infringement, stems from the appropriate recognition that dilution can occur even though goods or services are related. Unfortunately, this fact forces courts to address the relevance to a dilution claim of evidence supporting a likelihood of confusion necessary to prove an infringement claim, including evidence of actual confusion. Many courts simply conclude that proof of a likelihood of confusion proves dilution but offer little to support their conclusion. Recognizing this trend, a number of commentators have written hoping to rationalize these results within trademark protection. This article goes in the opposite direction, arguing that proof of infringement precludes a finding of dilution and explains why this must be the case.