Ninth Circuit Affirms Summary Judgment on Dilution Claim in Favor of Visa
Joseph Orr runs eVisa, a multilingual education and information business that operates exclusively on the Internet at www.evisa.com. The name eVisa came from an English language tutoring service called "Eikaiwa Visa" that Orr ran while living in Japan.
Visa sued JSL Corporation (through which eVisa operated) claiming that eVisa was likely to dilute the Visa trademark. The District Court granted summary judgment in favor of Visa and JSL appealed.
In a brief opinion, authored by Chief Judge Kozinski, the Ninth Circuit affirmed, readily concluding that summary judgment was appropriate on Visa's claim of dilution by blurring as the marks were "effectively identical" and Visa is a strong trademark. The Ninth Circuit also rejected JSL's arguments regarding the use of the word "visa" for its common English definition noting that for trademark purposes, the significant factor is the way the word is used in a particular context:
In the context of anti-dilution law, the "particular context" that matters is use of the word in commerce to identify a good or service. There are, for instance, many camels, but just one Camel; many tides, but just one Tide. Camel cupcakes and Tide calculators would dilute the value of those marks. Likewise, despite widespread use of the word visa for its common English meaning, the introduction of the eVisa mark to the marketplace means that there are now two products, and not just one, competing for association with that word. This is the quintessential harm addressed by anti-dilution law.
The case cite is Visa Int'l Serv. Ass'n v. JSL Corp., No. 08-15206 (9th Cir. June 28, 2010).
