INTELLECTUAL PROPERTY LAW-THREE-STRIPES AND 'YOU'RE OUT' FOR TRADEMARK DILUTION?-adidas America, Inc. v. Skechers USA, Inc., 890 F.3d 747 (9th Cir. 2018)

"'25 Courts evaluate a series of factors that are relevant to determining the likelihood of dilution, although no particular factor is dispositive due to the flexibility of the test and the fact-specific nature of dilution claims.26 Some of the factors to determine the likelihood of dilution are: (1) how similar the alleged diluting mark is to the famous mark; (2) "[t]he degree of inherent or acquired distinctiveness of the famous mark"; (3) whether the holder of the famous mark's use is "substantially exclusive"; (4) how familiar society is with the famous mark; (5) if the other party intended for others to identify the other mark with the famous mark; and (6) if the famous mark and the other mark are connected with each other.27 The Ninth Circuit affirmed the district court's finding that "Skechers' Onix shoe infringe[d] on and dilute[d] the unregistered trade dress of adidas's Stan Smith shoe" as a result of the substantial similarities between the two shoes and the likelihood of consumers' confusion about the Onix shoe's source.28 Skechers's Cross Court shoe was found to likely dilute the Three-Stripe mark, but because adidas would not suffer irreparable harm from the Cross Court shoe, the Ninth Circuit reversed the district court's finding.29 Consequently, the Ninth Circuit affirmed the district court's preliminary injunction for Skechers's Onix shoe, but reversed the preliminary injunction for Skechers's Cross Court shoe.30 Although § 1125(c) allows courts to grant injunctive relief as the Ninth Circuit did in adidas, the available remedies for trademark dilution vary among the states. Ann. § 48233(a) (West 2001) (Along with awarding damages and profits, and ordering destruction of the mark, "[t]he court, in its discretion, may enter judgment for an amount not to exceed three times the lost profits and damages incurred by the owner, and award reasonable attorneys' fees to the owner when the court finds that the defendants committed the wrongful acts knowingly or in bad faith."); Idaho Code Ann. § 48-514 (West 1996) (Along with awarding damages and profits, and ordering destruction of the mark, "[t]he court, in its discretion, may enter judgment for an amount not to exceed three (3) times such profits and damages and may award reasonable attorney's fees and costs of suit to the prevailing party in such cases where the court finds the other party committed the wrongful acts with knowledge or in bad faith or otherwise, as the circumstances of the case m