Pleases see attachment and read assignment carefully before you engage. Assignment Due on4February 2017.
7.3 Dilution of a Trademark: V Secret Catalogue, Inc. and Victoria’s Secret
Stores, Inc. v. Moseley 605 F.3d 382, Web 2010 U.S. App. Lexis 10150 (2010)
United States Court of Appeals for the Sixth Circuit (page 139)
‘likely to cause dilution’ used in the new statute significantly changes the
meaning of the law from ‘causes actual harm’ under the preexisting law.” —Merritt, Circuit Judge
Victoria’s Secret is a successful worldwide retailer of women’s lingerie,
clothing, and beauty products that owns the famous trademark “Victoria’s
Secret.” A small store in Elizabethtown, Kentucky, owned and operated by Victor
and Cathy Moseley, used the business names “Victor’s Secret” and “Victor’s Little
Secret.” The store sold adult videos, novelties, sex toys, and racy lingerie.
Victoria’s Secret sued the Moseleys, alleging a violation of the Federal
Trademark Dilution Act of 1995. The case eventually was decided by the U.S.
Supreme Court in favor of the Moseleys, when the Court found that there was no
showing of actual dilution by the junior marks, as required by the statute.
Congress overturned the Supreme Court’s decision by enacting the Trademark
Dilution Revision Act of 2006, which requires the easier showing of a
likelihood of dilution by the senior mark. On remand, the U.S. District Court
applied the new likelihood of confusion test, found a presumption of
tarnishment of the Victoria’s Secret mark that the Moseleys failed to rebut,
and held against the Moseleys. The Moseleys appealed to the U.S. Court of
Is there tarnishment of the Victoria’s Secret senior mark by the Moseleys’ use
of the junior marks Victor’s Secret and Victor’s Little Secret?
Language of the Court:The phrase “likely to cause
dilution” used in the new statute significantly changes the meaning of the law
from “causes actual harm” under the preexisting law. The burden of proof
problem should now be interpreted to create a kind of rebuttable presumption,
or at least a very strong inference, that a new mark used to sell sex-related
products is likely to tarnish a famous mark if there is a clear semantic
association between the two.In the present case, the Moseleys have had two
opportunities in the District Court to offer evidence that there is no real
probability of tarnishment and have not done so. Without evidence to the
contrary or a persuasive defensive theory that rebuts the presumption, the
defendants have given us no basis to reverse the judgment of the District Court.Decision: The U.S. Court of Appeals affirmed the U.S.
District Court’s judgment in favor of Victoria’s Secret.
Questions; Critical Legal Thinking:Do you think that
Congress often uses its “veto power” over the U.S. Supreme Court’s
interpretation of a federal statute by enacting another statute to change the
result of a Supreme Court’s decision
you think the Moseleys were trading off of Victoria’s Secret famous name? Do
you think that the Moseleys had a legitimate claim to their business names
because the husband’s name was Victor?
Business:Did the change in the Trademark Dilution Revision
Act of 2006 favor famous trademark holders?
Holder in Due Course: UAW-CIO Local #31 Federal Credit Union v. Royal Insurance
Company, Ltd., 594 S.W.2d 276, Web 1980 Mo. Lexis 446 (Supreme Court of
Royal Insurance Company Ltd. (Royal) issued a draft
in the amount of $12,000 payable through the Morgan Guaranty Trust Company
(Morgan Guaranty). The draft was made payable to Gary E. Terrell in settlement
of a claim in an insurance policy for fire damage to premises located in Kansas
City, Missouri. Subsequently, the attorney for Mr. and Mrs. Louis Wexler
notified Royal that Terrell’s clients had an insurable interest in the damaged
property. As a result, Royal immediately stopped payment on the draft. On the
same day, the draft was indorsed by Gary E. Terrell and deposited in his
account at the UAW-CIO Local #31 Federal Credit Union (Credit Union). Over the
next two days, Terrell withdrew $9,000 from this account. Immediately upon
receiving the draft, Credit Union indorsed it and forwarded it to Morgan
Guaranty for payment. The draft was returned to Credit Union with the notation
“Payment Stopped.” When Royal refused to pay Credit Union the amount of the
draft, Credit Union sued. The basis of the lawsuit was whether Credit Union was
a holder in due course. Who wins? UAW-CIO Local #31 Federal Credit Union v.
Royal Insurance Company, Ltd., 594 S.W.2d 276, Web 1980 Mo. Lexis 446 (Supreme
Court of Missouri)
Henry R. Business Law, VitalSource for DeVry University, 8th Edition.
Pearson Learning Solutions, 02/2013. VitalBook file.
Your responses should be well-rounded and analytical, and
should not just provide a conclusion or an opinion without explaining the
reason for the choice.
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is important that you incorporate the question into your response (i.e.,
restate the question in your introduction) and explain the legal principle(s)
or concept(s) from the text that underlies your judgment.
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