Geographic segmentation apple computers apple banks. Things can coexist geographically
Passing off [see also reverse passing off Dastar case]. What is bad about passing off? In competition law we say that free-for-all of market
Goodwill / reputation is a monetizable asset
Free-for-all market is not always good for non-economic reasons: see trade secrecy.
Sucks sites cannot be closed up because they do not create confusion
Traditional TM infringement: Senior user of a mark sues that junior user of a mark claiming consumer confusion, either about the source/origin of the products or the affiliation/sponsorship between the two companies. TM does not need to be registered to merit protection. Likelihood of confusion test considers (Polaroid test):
Whether the challenged use is within the senior user’s zone of natural expansion
See Beebe (TM scholar at Cordozo) who says that the most important thing is bad faith: “An empirical analysis of the multifactor tests for TM infringement”
TM Dilution: The diminished capacity of a famousmark to distinguish goods or services regardless of (1) competition or (2) likelihood of confusion, mistake, or deception.
Blurring: use of a famous mark highly associated with a particular product on something else (unrelated product). Association between mark and goods is blurred. E.g. Kodak motorcycles.
Tarnishment: The association between an owner’s mark an the goods is tarnished by a good that hurts its reputation. E.g. anything and porn.
1995 Anti-Dilution Act: 15 U.S.C. §1125. Entitles an owner of a famous mark to injunctive relief against a commercial use that begins after the mark becomes famous (famous?) and if that use dilutes the mark. Test considers 8 factors: