Haute Diggity Trademark!

These pictures of a Haute Diggity Dog Chewy Vuiton toy show something that even INTA's brief in this important dilution case didn't mention (though it did mention Haute Diggity's attempt to register CHEWY VUITON). The TM on the tag seems to be a pretty clear disqualification from the statutory safe harbor for dilutive uses that are not used "as a designation of source." 1125(c)(3)(A).
Of course, it remains to be seen whether parodic source-identifying uses are deemed dilutive. Some pre-TDRA courts reasoned that parodies don't cause blurring because they depend on reference to the earlier, so that consumers never learn to think "there are two Louis Vuittons." If this reasoning retains its validity, then Haute Diggity could still get off the hook. Why bother with the statutory exclusion, then, if parodies don't blur? INTA suggests that this earlier line of cases needs to be rejected, at least insofar as it failed to apply the TDRA factors, because otherwise the statutory exclusion is redundant. But the exclusion simplifies matters for non-trademark uses that should count as protected free speech, and ensures that even tarnishing non-trademark-use parodies are allowed.

(Photos from my new digital camera.)