|With two brains working together,|
Eric decided to tackle the deeper
meanings of EU TM law
Marshall Leaffer then took the audience through some 9th Circuit dilution decisions, leading with Visa v JSL Corp 610 F3d 1088 (2010) which affirmed that dilution was a question of fact, not law, and that, where a strong mark such as VISA is at stake, summary judgment is highly appropriate. Perhaps surprisingly the court accepted that establishing a likelihood of confusion didn't require a plaintiff to produce expert testimony or market surveys: the characteristics of the mark might be relied on by themselves. The parallel existence of the word "visa" as a regular noun with a dictionary meaning did not undermine the word's trade mark meaning: what was significant was the way it was used. Marshall also considered Levi Strauss v Abercrombie & Fitch and the degree of similarity which was needed in order to establish confusion.