A mark or brand may receive extended protection where the mark is famous and unauthorized use attempts to leverage the goodwill and established renown of such a mark. Pursuant to the Federal Trademark Dilution Act, a famous trademark is protected from the use of the mark by another person or company where such use dilutes, or lessens the ability of the famous mark to identify and distinguish its goods or services. The Act also provides that competition between the owner of a famous mark and an unauthorized user of a mark, and a likelihood of confusion among consumers are not required to receive the Act's protection.

For example, assuming the "Wazzu" brand soft drink for Gulf Beverages is famous, Gulf Beverages receives protection against the Breeze Company's use of "Wazzu" associated with the sale of umbrella. Gulf Beverages' famous "Wazzu" mark receives this protection despite the fact Gulf Beverages and Breeze are non-competitors and the public is not confused as to the source of the soft drinks and umbrellas. Congress reasoned a famous mark should receive the Act's strong protections from dilution because of "the substantial investment the owner has made in the mark and the commercial value and aura of the mark itself."

When is a Mark Famous?
To satisfy the first requisite for anti-dilution protection, fame, the Act lists factors in assessing whether a mark is distinctive and famous. Generally a mark must be prominent and renowned --- beyond the strength required for protection from an infringement, distinctiveness. A famous mark should have a powerful association with consumers.

In some instances, a mark's notoriety is determined by comparing the mark with well established famous marks, such as "Exxon," "Kodak," or "Coca-Cola." While such a comparison assumes national acknowledgement of a famous mark, a mark may achieve fame in a small market. Prominence may be achieved in a localized market as long as the mark seeking protection and the alleged offending mark share the same trading area. In some circumstances a state anti-dilution law may provide dilution protection for a locally famous mark. Prominence may also be achiebed in a narrow, or niche, market segment where a mark possesses a high degree of recognition and both parties share the same niche market.

For a mark to achieve fame, moreover, a third party should not use the mark or a similar mark, unless such use is restricted. Therefore, it is advantageous for an owner of a famous mark to actively monitor, or police, usage of its mark, and the like, by others.

What Is Dilution?
To receive anti-dilution protection, the Act requires actual dilution, or the whittling away of the value of a famous trademark when it is used to identify different products. If the use of a mark weakens, or blurs, a famous mark's ability to act as a unique identifier, then it is likely to dilute. Blugging would occur if a company sold, without authorization, "Pepsi Skates" or "Microsoft Lipstick." Microsoft is not commonly identified with lipstick products and it is assumed such unauthorized use weakens Microsoft's distinctive link with its own goods and services.

Dilution also occurs where consumers may form an unfavorable, or offensive, association with a famous mark. For instance, Hasbro's brand, "Candyland," a children's game, was protected where another company used the candyland.com domain name for the promotion and sale of pornographic materials. The use of candyland.com tarnished Hasbro's brand becuase it is presumed consumers may associate pornography, unfavorable compared with Hasbro's children's game, with "Candyland."

Protection of a distinctive mark or brand from infringement occurs where there is a likelihood of confusion by consumers about the source of a good or service associated with a mark, or a similar mark. If a distinctive mark is famous, this protection is extended against dilution. Anti-dilution laws protect a famous mark's owner from the erosion of the distinctiveness and prestige attributed to a mark. This protection is extended even if the goods or services associated with a famous mark and an improper mark do not compete, or the public is not confused about the source of the good or service.