Ridiculous: Court Says Mock Basketball Which Appears In Hyundia Commercial For 1 Second 'Dilutes' LV Trademark
from the are-they-insane? dept
If you missed it (entirely possible), at the 3 second mark, this image flashes briefly:
The point of the commercial is to get people to imagine what life would be like if "luxury" items were everyday items, and thus the mock basketball with symbols designed to suggest a luxury bag, like a Louis Vuitton bag. As we (and many, many trademark experts) suggested when the lawsuit was filed, the claims here are simply crazy. There is simply no harm whatsoever done to Louis Vuitton by this ad. Most people wouldn't even notice the markings and if they did, what possible "harm" would it do? The answer is none. There is no consumer confusion whatsoever. There are no LV basketballs that won't be sold because of this (in fact, the judge in this case notes that, after seeing this commercial, some people wanted one -- which would suggest a market opportunity, rather than litigation).
Of course, Louis Vuitton's complaint didn't rest on the bedrock of trademark law -- the likelihood of confusion -- but a more modern bastardization of trademark law called "dilution." The concept of dilution in trademark law is an affront to the purpose of trademark law, which is supposed to be about protecting consumers from confusion. That is, it's supposed to be about preventing someone from buying Bob's Cola, thinking that it's really Coca-Cola. But there's no such risk here. Dilution, however, flips the very concept of trademark law on its head and pretends (falsely) that trademark law is about protecting a company's trademarks from anyone doing anything at all with it that the company doesn't like.
Unfortunately, the courts don't always get things right -- which is why we get such ridiculous lawsuits in the first place -- and here, amazingly, the district court has sided with Louis Vuitton in its dilution argument, granting summary judgment on Hyundia's liability for dilution, while it rejected Hyundai's movement for summary judgment rejecting all of Louis Vuitton's claims. This is, in many ways, horrifying.
Eric Goldman's summary, linked above, highlights the many problems with the ruling -- while cautioning that the details suggest this type of ruling is limited. Still, as he notes:
And then we have an opinion like this--where the court finds trademark dilution without finding infringement (not resolved yet) and in a situation where EVERYONE can immediately tell there was zero harm to the brand owner. Rulings like this make trademark academics shudder in fear that trademark dilution will swallow up all of trademark law and confer rights-in-gross to trademark owners. While I don't share those fears for reasons I'll explain in a bit, unquestionably this is a bad ruling.Goldman goes on to highlight some of the more specific problems with the ruling, but the key point is simply that there is no harm here. None. Absolutely none. Perhaps less than none, given the reports of interest in LV basketballs. When the law doesn't care about that, then the law is, unquestionably, broken. A ruling like this automatically lessens respect for trademark law, because it makes no sense at all. It makes a mockery of the judicial system by suggesting that lawsuits like this have any merit whatsoever.