Trademark Infringement and Trademark Dilution
The Lanham Act’s requirement that trademarks be used in connection with the sale of goods or services is different from that of Patent trademark law dilution. To be infringed upon, a trademark must be used in a “commercial setting.” In this case, that means relating to the sale of goods or services for profit, and not in an individual’s personal use. Thus, a personal use of the trademark would not be infringed upon.
Defendant’s “Bally sucks” website
Defendant’s “Bally Sucks” website is allegedly infringing on Bally’s trademarks by allowing consumers to create websites under its name, and the court ruled that Faber’s website violated Bally’s trademarks. This decision is a rare one, and the decision could have significant implications for the future of the Internet.
Defendant has not established that Faber’s “Bally sucks” website violates its trademarks, but the court has recognized a number of defenses for fair use. Although Faber uses the Internet for advertising and marketing, it has not demonstrated that it uses all available channels to advertise its goods. Faber has one website offering web design services, but once included a reference to the Bally sucks site.
Defendant’s “King VelVeeda” website
Mr. Helm’s website contains erotic and sexually explicit items and depictions of illegal drugs. Although the Court finds that Mr. Helm did not intend to parody Kraft, he does have more leverage in this case than most defendants. He estimates that his income is $250 per week. Accordingly, he cannot claim to have suffered irreparable harm. Further, Kraft’s “King VelVeeda” website is not a parody of Defendant’s products, and it may be confusing.
In January 2002, Kraft learned of Mr. Helm’s website and contacted him. Kraft’s attorney asked Mr. Helm to cease using the VelVeeda moniker in all “commercial” activity. Mr. Helm refused but accepted Kraft’s offer of a sixty-day “transition” period to cease using Velveeta. The company also provided Mr. Helm with three years to cease using the VelVeeda moniker in all “commercial” activities.
Defendant’s “Savin” mark in the domain name
The Savin trademark is registered for various related goods and services. However, the mark is not registered for professional engineering services. Plaintiff claims that the defendants’ continued use of the mark is an infringement of its trademark. The plaintiff asserts that the defendants acted in bad faith by continuing to use the mark, despite knowing that it is infringing its trademark. The complaint alleges that the defendants should have known about the infringement and the lapse of time between the first notice and the pending action.