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Victor's Victorious
The United States Supreme Court decided its first Federal Trademark Dilution Act (FTDA) case on March 4, 2003, in Moseley et al. dba Victor's Little Secret v. V Secret Catalogue, Inc. et al. The Court granted certiorari to settle the Circuits' differing opinions on whether relief under the FTDA requires a showing of objective proof of actual injury to the economic value of a famous mark, as opposed to a presumption of harm arising from a subjective 'likelihood of dilution' showing.
In deciding that objective proof of actual injury is required, the Court unanimously reversed the Sixth Circuit's decision, which had affirmed an injunction prohibiting the Petitioners, Victor and Cathy Moseley, from using the 'Victor's Little Secret' name for their small lingerie and 'adult novelties' store in Elizabethtown, Kentucky. The Respondents were the affiliated corporations that own the VICTORIA'S SECRET trademark, operate 750 Victoria's Secret lingerie stores, including two in Elizabethtown, and distribute 400 million copies of the Victoria's Secret lingerie catalog each year, including 39,000 in Elizabethtown.
The Court focused on the FTDA's definition of dilution: 'the lessening of the capacity of a famous mark to identify and distinguish goods or services.' It noted that while Respondents' VICTORIA'S SECRET trademark was unquestionably valuable and the Petitioners had not challenged that it was 'famous' as defined in the FTDA, the record had reavealed 'a complete absence of evidence' that Petitioner's store name had caused any lessening of the VICTORIA'S SECRET mark's capacity to identify and distinguish its goods or services. The record had shown only that an advertisement for Petitioners' store, under its original 'Victor's Secret' name, had caused one person to make a mental association with the VICTORIA'S SECRET mark, but it had not caused him to form any different impression of Respondents' VICTORIA'S SECRET store.
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