In this regard, he vehemently argued that no longer was the modern era nature and function of trademarks based on the antiquated and redundant medieval proprioteor and consumer neighbourhood theory of informing the consumer of the specific source or origin of the trademarked goods, but now merely serve to indicate that goods bearing the same mark emanate from the same source, albeit anonymous and not physically known to them. For this very reason, the proper functions and value of modern marks lie in:
Quality and price gurantee: Their potency and prowess in identifying the product as consistently satisfactory thus stimulating the desire for further purchases by the consuming public.
Repute and goodwill: The selling power dependent on the psychological hold that the mark ingrains in the consumer owing to its uniqueness and individuality in creating repute and goodwill for the proprietor, and not merely upon the merit of the marked products. In this sense, a mark is not only a symbol of goodwill, but an agent for the creation and retention of the enterprise’s repute and goodwill. As such, the more distinctive the mark, the more its potency and prowess in selling the goods or services to which it is attached.
Dilution threats: Trademark pirates have grown more subtle and refined alongside technological advancement, circumspectly proceeding by suggesstion and approximation as opposed to direct duplication of the proprietor’s marks or wares. In consequence, the uniqueness and individuality or singularity of well-known or famous marks is prone to vitiation, impairement or destruction by its misappropriation and mis-use on competing and non-competing products by unscrupulous third parties.This then is trade mark dilution considered as deserving of broader protection.
Proprietor’s creative ingenuity: The degree of distinctiveness, uniqueness and singularity of the mark epitomises the trademark owner’s creative ingenuity. As such, unlike commonplace marks, the degree of protection of distinctive marks should correspond to the extent of the owner’s creative efforts.
In a nutshell, the concept of dilution is motivated by the distinctive mark’s intrinsic value and potency in creating and retaining custom through the creation of repute and goodwill to the enterprise. As such, the rational basis of protecting distinctive trademarks from dilution is the preservation of its uniqueness and individuality. This is of paramount importance to their owners and proprietors for the mark actually sells the goods, and its vitiation would be calamitous to the enterprise’s viability, so argued Schechter.
Nature and scope of dilution provisions
As a new conceptual phenomenon, dilution provisions recognise and acknowledge that a well-known or famous mark has a reputation which floats freely from the goods or services to which it is affixed to stretch to non-competing goods. For this reason, whereas traditional infringement of well-known marks on similar goods or services focuses attention on damage caused to the proprietor’s business, the dilution provisions instead focus attention on the proprietor’s mark. The anti-dilution remedy is therefore a special and extraordinary remedy for strong and famous marks where the traditional likelihood of confusion would not have been successful in curbing infringement.
Elements of dilution
Never mind inconsequential syntactical variances in global legislative innovations, the crux of the dilution remedy is the protection of a well-known mark’s reputation from invasion by an imitation thereof which either takes unfair advantage or is detrimental to its distinctive character or repute. By taking unfair advantage, here is meant damaging the business or riding on the coat-tails of the distinctiveness or repute of the mark. Meanwhile, detrimental use of the mark implies tarnishing the uniqueness and individuality of the mark.
Types of dilution
Trademarks may be diluted by blurring or tarnishment. Dilution by blurring simply means the random use of imitations of the mark on both competing products and non-competing as a result of which the mark loses its hold on the public consciouness.
By Richard Pasipanodya