Re: [dvd-discuss] Copyright v. Trademark

["James S. Tyre" <jstyre(at)jstyre.com>]

At 10:46 PM 3/6/2003 -0600, Jolley wrote:

>I heard on NPR this week that Victoria's Secret lost their trademark
>infringement case against Victor's Little Secret.  I think it was
>unanimous.

They lost in the sense that the Supreme Court reversed a Summary Judgment 
that had been granted in favor of Victoria's Secret, now it goes back to 
the trial court for further proceedings.

Pretty amazing what the Supreme Court did, they actually required VS to 
offer proof of its dilution claim.  Here's the last graf of the Opinion:

     Noting that consumer surveys and other means of demonstrating actual 
dilution are expensive and often unreliable, respondents and their amici 
argue that evidence of an actual “lessening of the capacity of a famous 
mark to identify and distinguish goods or services,” §1127, may be 
difficult to obtain. It may well be, however, that direct evidence of 
dilution such as consumer surveys will not be necessary if actual dilution 
can reliably be proven through circumstantial evidence–the obvious case is 
one where the junior and senior marks are identical. Whatever difficulties 
of proof may be entailed, they are not an acceptable reason for dispensing 
with proof of an essential element of a statutory violation. The evidence 
in the present record is not sufficient to support the summary judgment on 
the dilution count. The judgment is therefore reversed, and the case is 
remanded for further proceedings consistent with this opinion.



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James S. Tyre                               mailto:jstyre@jstyre.com
Law Offices of James S. Tyre          310-839-4114/310-839-4602(fax)
10736 Jefferson Blvd., #512               Culver City, CA 90230-4969

In the circumstances, this result cannot be unfair to Mr. Lodi.
Although it is true that, as plaintiff and appellant, he loses, it
is equally true that, as defendant and respondent, he wins.  It is
hard to imagine a more even handed application of justice.  Truly, it
would appear that Oreste Lodi is that rare litigant who is assured of
both victory and defeat regardless of which side triumphs.

Lodi v. Lodi, 173 Cal.App.3d 628 (1985)