With a non-famous mark, the owner of the mark must show that the allegedly infringing use creates a likelihood of confusion as to the source of the product or service being identified by the allegedly infringing use: it is highly unlikely a likelihood of confusion will be found if the products or services are in unrelated markets.
Such trademarks would include instantly recognizable brand names, such as Coca-Cola, Kleenex, Kool-Aid, or Sony, and unique terms that were invented (such as Exxon) rather than surnames (such as Ford or Zamboni) or ordinary words in language.
Some jurisdictions require additional registration of these trademarks as defensive marks in order to qualify for dilution protection.
Dilution is sometimes divided into two related concepts: blurring, or essentially basic dilution, which "blurs" a mark from association with only one product to signify other products in other markets (such as "Kodak shoes"); and tarnishment, which is the weakening of a mark through unsavory or unflattering associations.
The marks were not identical ("Cliquot" and "Veuve clicquot") and the risk of confusing the champagne brand and a clothing store was low.
However the court ruled that the only element needed was the ability of an average consumer to recognize the first distinctive character.
Even if the trade mark is not that well known, the fact that a significant goodwill is attached to it might be enough for the court to find the use by another person unlawful.
[7] However, in that particular case, the court claimed that the plaintiff Veuve Clicquot failed to prove that the linkage between champagne and clothing was likely to cause depreciation.
It sought an injunction to restrain another company base in Ontario from advertising and distributing bottled water in association with the name "Pierre eh!"
Prior to specifically targeted laws being adopted, dilution protection was used in some U.S. jurisdictions to attack domain name infringement of trademarks (see Cybersquatting).
The Ninth Circuit Court of Appeals found that trademark dilution occurred when potential customers of Panavision could not find its web site at panavision.com, and instead were forced to search through other (less obvious) domain names.
The new law revises the FTDA, requiring the plaintiff to show only that the defendant's mark is likely to cause dilution.