Dilution is more than association: but what more?

The ECJ recently ruled on dilution as a ground for refusing registration. Environmental Manufacturing LLP v Office for Harmonisation in the Internal Market (OHIM), November 14, 2013 (Case C-383/12 P).  If this is taken seriously, I can’t imagine how anyone could actually find dilution, since we don’t know how to measure it. 

Carried over from a previous case: the burden is on the senior user to provide “proof that the use of the later mark is or would be detrimental to the distinctive character of the earlier mark requires evidence of a change in the economic behaviour of the average consumer of the goods or services for which the earlier mark was registered consequent on the use of the later mark, or evidence of a serious likelihood that such a change will occur in the future.”  This proof has to come from objective elements and “cannot be deduced solely from subjective elements such as consumers’ perceptions.” Moreover, “the mere fact that consumers note the presence of a new sign similar to an earlier sign is not sufficient of itself to establish the existence of a detriment or a risk of detriment to the distinctive character of the earlier mark.”