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Victoria's Secret, small store argue trademark case before high court
By William Mears
WASHINGTON (CNN) -- Victoria's Secret argued before the Supreme Court Tuesday that damages to a business may be inflicted when other companies use names similar to well-known brands. Without trademark protection, said Walter Dellinger, attorney for the lingerie heavyweight, the name "Victoria's Secret" could be used "perhaps hundreds" of similar sounding ways by various businesses, lessening the "unique, singular" quality of the original name. But the attorney representing a Kentucky mom-and-pop sex store countered that federal laws require businesses to show "proof of actual injury" if they claim their name has been infringed upon. "There needs to be objective evidence the public will confuse the disputed mark with another, more famous mark," said lawyer James Higgins, representing Victor Moseley, owner of a business now called Cathy's Little Secret. The arguments were made in a case testing federal trademark laws. The Court will make a ruling later in the 2002-2003 session. At issue is whether the federal Trademark Dilution Act gives undue protection to holders of a "famous" trademark. A court ruling could clarify rules over allegations that a rival is watering down trademark protection by using a sound-alike name or slogan. The case involves Moseley's Elizabethtown, Kentucky, business once called Victor's Secret that sells adult novelty items. Moseley opened the store in 1998 and adopted the name because of his desire to keep the business secret from a former employer. The Columbus, Ohio-based lingerie manufacturer Victoria's Secret claimed unfair competition and trademark infringement and sued Moseley. The store changed its name to Victor's Little Secret, but a ruling by the 6th U.S. Circuit Court of Appeals said that name would still make the public think of the well-known catalogue brand. "While no consumer is likely to go to the Moseleys' store expecting to find Victoria's Secret's famed Miracle Bra, consumers who hear the name 'Victor's Little Secret' are likely automatically to think of the more famous store and link it to the Moseley's adult-toy, gag gift, and lingerie shop," read the 6th Circuit opinion. Moseley changed the store name a second time, to Cathy's Little Secret, after his wife. The case tests the legal standard called "dilution," which the federal government interprets as "the lessening of the capacity of a famous mark to identify and distinguish goods and services." Victor and Cathy Moseley claim Victoria's Secret does not have a "distinctive quality" because many lingerie stores and companies use "secret" as part of their advertising. They also claim federal trademarks laws require "objective proof of actual injury," not subjective standards of dilution. "Our view is if we win, business wins, because the law would become more predictable," Higgins said in a report by The Associated Press. "There's no proof in this case that Victor's name caused any harm to Victoria's Secret's trademark. The appeals court, however, ruled that dilution could exist even before economic damages are suffered, which were the reason the federal law was strengthened. Previous federal court rulings have differed widely, owing perhaps to the subjective nature of trademarks. The court here may settle once and for all just what it takes to prove trademark dilution. The case is Moseley v. Victoria's Secret Catalogue, 01-1015.
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