Dispersio latin4/27/2023 ![]() In recent months, courts and commentators have scrambled to read the Moseley tea leaves on this issue, and the emerging majority view seems to be that direct evidence of dilution is generally required (except perhaps in cases of identical marks) and that the circumstantial factors relevant to the likelihood of consumer confusion have no application in the dilution context. Once dilution is demystified and placed in the broader context of the probability inquiry that has long been undertaken in traditional trademark infringement cases, many of the longstanding puzzles in dilution law may be unraveled.Ī parallel demystification lies at the heart of my resolution of the question of the method of proving dilution (in Section III). An open acknowledgement of this probabilistic dimension of trademark dilution is an important step toward resolving the decades-old debate over the fundamentals of dilution law. Dilution, after all, is not a binary phenomenon whose objective existence can be shown in "actual" fact it is an inherently probabilistic notion that can be evaluated only in terms of its subjective degrees. In so doing, I conclude that an evaluation of dilution, properly conceived, necessarily requires a consideration of its probability. Here, I explore the concept of dilution as it relates to the notions of mental association, consumer confusion, and selling power-concepts whose relation to dilution theory has long confounded the courts and commentators and was given only passing treatment by the Court in Moseley. As I demonstrate at some length, an express acknowledgment of this probabilistic inquiry sets the stage for a straightforward resolution of much of the theoretical tension in dilution law.Īfter offering a more complete description of the evolution of the controversy surrounding trademark dilution theory culminating in Moseley (in Section I), I turn to a reconsideration of the theory's basic definitional premise (in Section II). Although Moseley adopted the "actual dilution" standard over the competing "likelihood of dilution" formulation, I show that any evaluation of dilution necessarily requires a consideration of its probability, even if an express inquiry into its likelihood is paradoxically prohibited. My analysis also uncovers a latent paradox in the Supreme Court's decision last term in Moseley v. The article shows that once this probabilistic dimension of dilution is forthrightly acknowledged, much of the theoretical tangle in dilution law can be unraveled. In refuting this notion, I show that dilution shares an important feature in common with the traditional consumer confusion standard of trademark infringement: both require an inherent quantitative weighing of the probable extent to which the junior trademark may interfere with the senior mark. I argue that the principal source of the theoretical conflict over dilution is the pervasive conception of it as a sort of mystical construct that depends for its logical coherence on some external limiting principle. Take the same protective measures you would for fallout resulting from a nuclear blast.The article examines a legal theory that has plagued courts and commentators for decades on issues that cut to the core of the elusive definition of dilution and the method of its proof. There is no way of knowing how much warning time there will be before an attack by terrorists using an RDD, so being prepared in advance and knowing what to do and when is important. ![]() Some devices could cause fatalities from exposure to radioactive materials.ĭepending on the speed at which the area of the RDD detonation was evacuated or how successfully people sheltered-in-place, the number of deaths and injuries from an RDD might not be substantially greater than from a conventional bomb explosion. The primary purpose of terrorist use of RDDs is to cause psychological fear and economic disruption. Additionally, the radioactive materials used in RDDs are widely used in medicine, agriculture, industry, and research, and are easier to obtain than weapons-grade uranium or plutonium. RDDs appeal to terrorists because they require limited technical knowledge to build and deploy compared to a nuclear device. The size of the affected area and the level of destruction caused by an RDD would depend on the sophistication and size of the conventional bomb, the type of radioactive material used, the quality and quantity of the radioactive material, and the local meteorological conditions, primarily wind and precipitation. It is designed to scatter dangerous and sub-lethal amounts of radioactive material over a general area. An RDD combines a conventional explosive device with radioactive material. Terrorist use of an RDD, often called a dirty nuke or dirty bomb, is considered far more likely than use of a nuclear explosive device.
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