Nature of the Case
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Facts
Moseley (D), own and operate a retail store named 'Victor's Little Secret' in a strip mall in Elizabethtown, Kentucky. They have no employees. Secret (P) owns the VICTORIA'S SECRET trademark, and operate over 750 Victoria's Secret stores, two of which are in Louisville, Kentucky, a short drive from Elizabethtown. In 1998 they spent over $55 million advertising 'the VICTORIA'S SECRET brand--one of moderately priced, high quality, attractively designed lingerie sold in a store setting designed to look like a woman's bedroom.' They distribute 400 million copies of the Victoria's Secret catalog each year, including 39,000 in Elizabethtown. In 1998 their sales exceeded $1.5 billion. P discovered D and its use of the name Victor’s Secret and asked them to stop the use of the name. D then changed the name to 'Victor's Little Secret.' D refused to budge, and P sued for dilution. Finding that the record contained no evidence of actual confusion between the parties' marks, the District Court concluded that 'no likelihood of confusion exists as a matter of law' and entered summary judgment for Ds on the infringement and unfair competition claims. The court gave the FTDA claim to P, and the appeals court affirmed. D appealed.
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