As difficult as it is to describe "trademark dilution" without resorting to circularity and ipso facto, "trademark disparagement" is worse. Although the case law is far from clear on this,1 the real difference between "dilution" and "disparagement" is one of intent. There are at least two dimensions of this intent.
- The first, and most obvious, is simple anger at the property itself. The Perfesser's (well-taken, I might add) frustration with Anita Blake that set off this bloated blawg series—one that is, by this time, about as attractive as Jabba the Hutt sans slime—is an excellent example. Had the Perfesser executed such a piece of fan fiction, the best analysis would have been as disparagement, not mere dilution. The intent was to destroy the property, or at least damage it and force changes in its underlying nature.
- Since we're dealing with the arts, though, we have to remember that the irrational rules. Sometimes that anger is directed not at a particular property; the property is just in the way of a "writers' feud." They're even more vicious than academic feuds, if only because the stakes are even lower. Unfortunately, most of the best examples of this kind of thing are so obscure, or are simply not "web-ified," that you're just going to have to take my word for it or follow the hypothetical. Let's say that Arthur Author becomes insanely jealous of Sally Storyteller's success. The basis for the anger doesn't really matter. What does is Arthur's poison-pen (these days, poison-keyboard) "fan fiction" pieces that ridicule not just Sally's bestselling "Young Hunks in Love" series, but Sally's own integrity and methods.
The difficulty is that courts don't like to inject themselves into what usually looks (to the disinterested jurist) like a catfight. Disparagement analysis would be far more internally consistent if it would just admit that its factual foundation is something far more akin to libel2 and to interference with prospective contractual advantage than it is to the consumer-protection foundations of trademark law. That, however, is not going to happen any time soon—if only because the attorney and insurance-company egos involved are no more subordinate to reason than are those of their respective clients and insureds.
The critical distinction in disparagement, though, is that regardless of the motivation, it is usually analyzed (properly or not) as a subset of dilution. This is usually through not the "innocence" of a product line that is outside the scope of the "authorized" product line, but through either
- Necessary association of the mark with markedly inferior goods or services. In fiction, this frequently goes to matters of style and production values, as in the unauthorized Harry Potter books published in China over the last several years. Leaving aside the content matters, the writing was found objectively inferior to Rowling's (or what a competent translator would have done with Rowling's own words), and the books were shoddily printed and essentially unproofread.
- Then, too, there's the "indelicate activity" matter, the definition of which is itself somewhat indelicate. Hypothetically, consider Anita Blake's demise after she finally breaks down to deal with the sexual tension and ends up with excessive quantities of bodily fluids of various indelicate natures, bringing perhaps a rather disgusting reference to choking the chicken as the punchline.
The obvious problem here is the "markedly inferior" issue. Consider one of the biggest sources of fan fiction currently darkening the Internet: Star Wars. Bluntly, much of it vastly exceeds the quality of the writing and imagination demonstration in the two most-recent movie installments (The Phantom Script and Attack of the Clowns), and the less said about the unlamented Christmas "Special" of the 1970s the better! If nothing else, this demonstrates why the "authorized sources" don't like using trademark law, as opposed to copyright law. Copyright is strict liability: Prove that copying took place and you're done. You don't need to show that the copying had some adverse affect on your "authorized" goods. That, however, is a litigation practicality that should not be allowed to undermine the theoretical treatment of the behavior in question. However, like Galileo, I must continue to protest that it moves.
- This is as much a matter of the related civil procedure as of substance. Most of the relevant opinions were issued on either motions to dismiss—in which case the judge(s) can't consider any evidence at all, but only the allegations in the pleading, and they must presume those allegations true—or motions for summary judgment. If anything, the motions for summary judgment are even less helpful, because they require judges to pretend that they're making no credibility determinations, and disallow reliance on a mere sworn denial of truthfulness. Since intent is, in these kinds of things, always going to be inferred by a jury based on conflicting oral testimony—except if you're as stupid as Sean Fanning and tell the VCs that your fabulous Napster-like system is purposely set up to provide a liability shield for users whom you know will use it to pirate copyrighted works—summary judgment is a particularly ill-suited mechanism to reach an accurate result. Nonetheless, it's the law.
- The more-traditional term used in hardcore trademark discussions is "tarnishment," not "disparagement." See, e.g., Hyatt Corp. v. Hyatt Legal Servs., 736 F.2d 1153, 1157 n.2 (7th Cir. 1984) (holding that damage to "reputation" did not justify relief, as the defendant had conducted itself "in a circumspect manner"); Wedgwood Homes, Inc. v. Lund, 659 P.2d 377, 381–82 ("a[n] action for potential detraction from or tarnishment of the reputation associated with plaintiff's mark may be recognized… as 'likelihood of injury to business reputation'"). The twofold problem with this term is that it masks the actual factual distinction with dilution in general while simultaneously denying the relationship to defamation. In other words, it's just not personal enough. Ironically, though, it's perhaps closer to the origin of trademark law itself among silversmiths than we might otherwise recognize.