Careers

Experiences

Industries

Offices

Our Firm

Pages

Our People

Updates

Practices

Home - Warner Norcross + Judd LLP

The popular internet meme known as <a href="http://en.wikipedia.org/wiki/Rule_34_(Internet_meme)" target="_blank" rel="noreferrer noopener">Rule 34</a> states:&nbsp;"If it exists, there is porn of it. No exceptions." &nbsp;In actuality, there probably are a few exceptions to this rule (or at least I'd like to think so), but probably not many.

core/paragraph

At the same time, courts have become increasingly willing to product the owners of famous trademarks from having their trademarks associated with prurient or sexually charged content. The primary method for enforcing this protecting is the Federal Lanham Act's provisions against "dilution by tarnishment." In this context, "tarnishment" <a href="http://www.law.cornell.edu/uscode/text/15/1125" target="_blank" rel="noreferrer noopener">means</a> an “association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark.”

A growing consensus of courts across the nation agrees that the anti-dilution “law [is] designed to protect trademarks from any unfavorable sexual associations. Thus, any new mark with a lewd or offensive-to-some sexual association raises a strong inference of tarnishment.” That <a href="http://scholar.google.com/scholar_case?case=8338222998379905557&amp;q=605+F.3d+382&amp;hl=en&amp;as_sdt=2006" target="_blank" rel="noreferrer noopener">quote</a> comes from the U.S. Court of Appeals for Sixth Circuit, which governs the state where&nbsp;I reside and practice, and that has adopted an express presumption that prurient use of a famous mark automatically tarnishes it. This holding--which found that an adult novelty shop called "Victor's Little Secret" tarnished the famous mark of Victoria's Secret--is the strongest word on this topic to date, but several&nbsp;other courts have reached similar conclusions.

If your company owns a famous trademark, then, a logical corollary of Rule 34 is that your mark is probably being tarnished by being used with sexually charged content. Thanks to decisions like the Victor's Little Secret case, though, you don't need to accept this as inevitable. Instead, anti-dilution law provides a powerful tool for rooting out this content and protecting your brand's good image.

Augmented Legality

Emerging Media and Technologies

Partner

Brian D. Wassom

Information Technology Transactions

Rule 34 and Trademark Dilution

The Warner Norcross + Judd LLP lawyer responsible for the contents of our advertising and this website is managing partner <a href="/people/mark-j-wassink/" aria-label="Mark Wassink">Mark Wassink</a> who can be reached at <a href="mailto:mwassink@wnj.com" aria-label="email Mark Wassink">mwassink@wnj.com</a> or 616.752.2189. Please read our full <a href="/privacy-policy/" aria-label="see privacy policy">privacy policy</a> available on our website.

Rule 34 and Trademark Dilution

professionals