The Actual Dilution Requirement of the United States, United Kingdom and European Union: A Comparative Analysis

Abstract

This article considers the role of the actual dilution standard in the United States and the European Union (particularly in the United Kingdom). It traces the history of the actual dilution standard in both the US and the EU. The effect that the actual dilution standard has had on multifactor tests for blurring, and possible alternatives to such tests are considered. While the US has changed to a likelihood of dilution standard under the Trademark Dilution Revision Act 2006, the EU is moving towards an actual dilution standard. This article argues that the EU should learn from the US experience and should not adopt an actual dilution standard without first considering how to test for such harm. It also notes that the European experience demonstrates that even a likelihood of dilution standard is capable of being interpreted in a way which severely limits the availability of dilution as a cause of action. Such an approach could have serious ramifications for the degree of protection offered by the US revised likely dilution standard.

Keywords: trademark, intellectual property, dilution, blurring, united states, european union, trademark dilution revision act 2006, actual dilution, victoria's secret

JEL Classification: K10, O34