Likelihood of Dilution Surveys

Blurring | This is when two or more companies are associated with the same mark, blurring the distinctiveness of the mark. In this scenario, consumers may associate the allegedly infringing mark with the original source or the original category of products. This makes the mark less effective as an identifier of source, and therefore less valuable to the senior user.  

Tarnishment | This can occur when unauthorized use of the same or a very similar mark harms the senior user’s reputation by association with something unwholesome, low-quality, disgusting, controversial, or otherwise negative or detrimental to consumer perceptions of a brand. This does not require a showing that consumers are likely to be confused. Rather, the mere association created by the two businesses’ use of substantially similar marks creates the potential for the infringing use to harm the senior user’s reputation. 

Measuring Dilution

Under federal law, plaintiffs in trademark litigation must show only a likelihood that the brand will be diluted by the defendant’s actions. Our in-house experts design and conduct surveys that evaluate the likelihood of dilution. We conduct standalone likelihood of dilution surveys as well as surveys that show fame or awareness, supporting the dilution claim. Our likelihood of dilution surveys can also be part of a broader package of trademark surveys that includes likelihood of confusion.