Some time ago, we wrote (see Of Special Interests) about Victor Moseley, the owner of a store – formerly known as “Victor’s Little Secret” – which sells what have been described by one officious intermeddler as “cheap, tawdry, salacious and unwholesome” goods, namely “sexy lingerie, crotchless panties and other related items.”
For the benefit of those unfortunates who somehow missed the earlier blog, Moseley was sued by V. Secret – better known by its nom de cleavage as Victoria’s Secret – which alleged that he was diluting their famous trademark. The case worked its way to the U.S. Supreme Court – yes, the folks who find pubic hairs on Coke cans – which found in Moseley’s favor, on the grounds that Victoria’s Secret had not proven that it had been actually harmed by Moseley’s use of his trademark. The Supreme Court sent the case back to the lower court, which was supposed to enter a judgment in accord with the Supreme Court’s ruling.
Well, the lower court simply sat on the case. Congress had, meanwhile, sprung into action. Faced with the choice of dealing with a hostile, nuclear-armed North Korea or crotchless panties, they followed past practice and chose the latter. They passed the Trademark Dilution Revision Act of 2006, which changed the standard for proving trademark dilution to “a mere likelihood” of harm, whereupon the lower court awoke from its slumbers and again entered a judgment against Moseley.
Moseley has now filed a second Petition For Writ Of Certiorari in the Supreme Court, thereby establishing some sort of record for perseverance. He claims he is proceeding pro se, but after reading his petition, we strongly suspect that some anonymous lawyer had a hand in drafting it. At any rate, the petition raises four issues which Moseley – or his ghost writer – believes the Supreme Court needs to address:
1. Whether the new law creates a rebuttable presumption or inference requiring the owner of the new mark to come forward with evidence that there is no likelihood or probability of tarnishment;
2. Whether the new law can be applied to cases filed prior to its enactment;
3. Does the “separation of powers” provision of the constitution bar Congress from effectively overruling the prior Supreme Court decision in this case; and
4. How “semantically similar” must a trademark be to a “famous mark” before it becomes a violation of the new law?
Issues 2-4 are pretty much limited to the facts of this particular case; but the first issue – who has the burden of proof – is of much broader significance.
Whatever the outcome, you have to admire Moseley’s determination. While waiting for a decision in this matter, why not stop by the shop and pick up something for the little lady?
On the other hand, Mosely's insistence in continuing with this case might lead one to suspect that he did, indeed, benefit and profit from free-riding on the goodwill of the Victoria's Secret brand.
What, for a whole nine months in 1998 until the original district court decision forced him to change the name? The store has been renamed for the entire duration of the current millennium.
Perhaps if Victoria's Secret's panties weren't in such a twist, they would acknowledge that there is no way that a single store in a small town in Kentucky could ever tarnish their picture perfect (and in no way sexually-oriented /sarcasm) brand.
I admire the spunk of Victoria's Secret argument. A shop that sells sex toys can in some way damage their reputation for selling sexy lingerie. A little sex = good! Too much sex = oh noes!