Suppose Virginia-based Mobil Corp. learned that “Mobil” candy bars have just gone on sale in Maryland supermarkets. Could it stop the sale? Probably not, according to recent federal court decisions that threaten to undermine a primary trademark remedy.
Congress enacted the Federal Trademark Dilution Act(FTDA) in 1995. [FOOTNOTE 1]In the past four years, the FTDA has been invoked to enjoin such novel abuses as the use by cybersquatters of famous trademarks in Internet domain names. [FOOTNOTE 2]However, recent decisions hold that FTDA plaintiffs, unlike ordinary trademark infringement plaintiffs, must prove actual, consummated harm to their marks in order to obtain injunctions. This requirement may create insurmountable problems of proof for most plaintiffs. Congress may have to change the law if the FTDA is to remain an effective remedy.
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