Friday, November 10, 2006

New federal dilution law applied in "dog of a case"

Beginning the opinion with a barrage of puns, a federal district court has engaged in the first interpretation of the FTDA as amended. Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 2006 WL 3182468 (E.D. Va. 2006). Defendant sells, inter alia, dog beds and toys with the "Chewy Vuiton" mark and colored interlocking-letters design, an obvious reference to the similar Louis Vuitton mark and trade dress.

Plaintiff's trademark infringement, dilution, and counterfeiting (!) claims failed, as did its copyright infringement claims. Notably, the district court adopted past precedent that parodies are unlikely to cause dilution, even though the new law doesn't include that in its factors for a court to consider. This is not a criticism; the idea that parody is likely to maintain the distinctive image of the parodied mark, so that the usual weight of factors like similarity doesn't apply, has a long pedigree (if I may indulge my own pun) in interpreting state dilution laws that also don't mention parody. In addition, because the parody was "gentle," it was not tarnishing.

Other tidbits: The court found a small overlap in product lines, since Louis Vuitton makes some high end pet products, but it wasn't significant, given that LV's cheapest product was still roughly twice the price of Haute Diggity Dog's most expensive. As one of HDD's customers pointed out,
"if I really thought that a $10 dog toy made out of fluff and stuff was an actual Louis Vuitton product, [then] I would be stupid."

The copyright claim reached the right result on fair use, but without any serious analysis of what it is that LV has copyrighted -- the court treated the name "Louis Vuitton" as part of LV's copyright, which it isn't.

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