Commentary

Priceline, Travelocity and Cingular Wireless each contracted with DirectRevenue LLC to deliver ads to consumers. To service its clients (including Priceline, Travelocity and Cingular Wireless), DR installed adware on millions of computers. The adware, which was undisclosed to users and difficult to remove, monitored the websites visited by the users and collected the information they typed into web forms. The NY AG filed a law suit alleging that DirectRevenue had violated New York consumer protection law, then pursued DirectRevenue's three major advertiser clients.

On October 6, 2006, President Bush signed the Trademark Dilution Revision Act of 2006 into law.  The law was formulated as a response to a case in which Victoria's Secret unsuccessfully sued over the issue of trademark dilution from use of the name "Victor's Little Secret."  The U.S. Supreme Court held that actual dilution had to be established for a dilution claim to succeed.  The new law changes the standard to one that matches the rest of trademark law—now, a trademark holder need only establish likelihood of dilution to prevail.

79 USPQ2d 1844 (DC SNY 2006). Online pharmaceutical retailers sued by Merck & Co. for trademark infringement based on the retailers' use of the term "Zocor" to describe generic pharmaceutical drugs that they sold online.  Merck further claimed that the retailers engaged in trademark infringement by purchasing "Zocor" as a keyword for advertisements appearing on Internet search engines' websites.

Does an adult novelty shop called "Victor's Little Secret" dilute the famous "Victoria's Secret" mark? The recent U.S. Supreme Court case Moseley v. Victoria's Secret Catalogue addressed this issue – with the result that proving dilution of a famous mark is now even more difficult.