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V Secret Catalogue, Inc. v. Moseley

United States Court of Appeals for the Sixth Circuit
605 F.3d 382 (2010)


Facts

Victor and Cathy Moseley (defendants) owned a store that sold sex toys in Elizabethtown, Kentucky, named “Victor’s Little Secret.” V Secret Catalogue, Inc. (Victoria’s Secret) (plaintiff) was an international lingerie company that operated under the name “Victoria’s Secret.” Victoria’s Secret sued the Moseleys for trademark dilution by tarnishment, alleging that the tawdry nature of the goods sold at Victor’s Little Secret reduced Victoria’s Secret’s selling power by causing consumers to have less positive associations with the Victoria’s Secret mark. At trial, Victoria’s Secret submitted an affidavit from a man who saw an ad for Victor’s Little Secret and was dismayed to see a store trading on Victoria’s Secret’s more respectable name to sell such unwholesome merchandise. Additionally, Victoria’s Secret submitted a statement from one of its executives explaining that Victoria’s Secret tried to maintain a “sexy and playful” image that steered clear of things “sexually explicit or graphic.” The Moseleys did not present any evidence that their store’s name was unlikely to tarnish Victoria’s Secret’s mark. The district court found for Victoria’s Secret and issued an injunction preventing the Moseleys from using the name Victor’s Little Secret for their store. The Moseleys appealed, and the appellate court affirmed. The United States Supreme Court reversed the appellate court, holding that a trademark-dilution claim required a plaintiff to present evidence of actual dilution. Because Victoria’s Secret presented no evidence of actual harm or dilution, only a likelihood of harm from the associations that consumers might make with the Victoria’s Secret mark, Victoria’s Secret had failed to meet its burden of proof. In response to the Supreme Court’s ruling, Congress passed the Trademark Dilution Revision Act of 2006 (TDRA). The TDRA made trademark dilution by tarnishment actionable if the trademark holder could show that the defendant’s use of the mark was likely to cause dilution of the trademark holder’s reputation. On remand, the district court ruled for Victoria’s Secret. The Moseleys appealed.

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Issue

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Holding and Reasoning (Merritt, J.)

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Dissent (Moore, J.)

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