Proving a federal trademark dilution claim may be more difficult if courts follow the Fourth Circuit’s controversial decision in Ringling Bros.-Barnum & Bailey Combined Showsv. Utah Div. of Travel Dev. [FOOTNOTE 1]

There, the Court of Appeals affirmed a decision of the federal District Court for the Eastern District of Virginia. The trial court had ruled that use of the slogan “The Greatest Snow on Earth” for Utah’s winter sports attractions did not dilute Ringling Bros.-Barnum & Bailey’s “The Greatest Show on Earth” service mark for circus performances in violation of Section 43(c) of the Lanham Act. [FOOTNOTE 2]In reaching its decision, the Fourth Circuit concluded that “to establish dilution of a famous mark under the federal Act requires proof that (1) a defendant has made use of a junior mark sufficiently similar to the famous mark to evoke in a relevant universe of consumers a mental association of the two that (2) has caused (3) actual economic harm to the famous mark’s economic value by lessening its former selling power as an advertising agent for its goods or services.”� [FOOTNOTE 3]

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