(A) The owner of a mark which is famous in this State is entitled, subject to the principles of equity, to an injunction against another’s use of a mark commencing after the registrant‘s mark becomes famous which causes dilution of the distinctive quality of the registrant’s mark and to obtain other relief as is provided in this section. In determining whether a mark is famous, a court may consider, but is not limited to considering, these factors:

(1) the degree of inherent or acquired distinctiveness of the mark in this State;

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Terms Used In South Carolina Code 39-15-1165

  • Dilution: means the lessening of the capacity of a registrant's mark to identify and distinguish goods or services, regardless of the presence or absence of competition between the parties or the likelihood of confusion, mistake, or deception. See South Carolina Code 39-15-1105
  • Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
  • Mark: includes a trademark or service mark entitled to registration under this article whether registered or not. See South Carolina Code 39-15-1105
  • Registrant: means the person to whom the registration of a mark under this article is issued and the legal representatives, successors, or assigns of that person. See South Carolina Code 39-15-1105
  • Use: means the bona fide use of a mark in the ordinary course of trade and not made merely to reserve a right in a mark. See South Carolina Code 39-15-1105

(2) the duration and extent of use of the mark in connection with the goods and services;

(3) the duration and extent of advertising and publicity of the mark in this State;

(4) the geographical extent of the trading area in which the mark is used;

(5) the channels of trade for the goods or services with which the registrant’s mark is used;

(6) the degree of recognition of the registrant’s mark in its and in the other’s trading areas and channels of trade in this State; and

(7) the nature and extent of use of the same or similar mark by third parties.

(B) The registrant is entitled only to injunctive relief in this State in an action brought under this section unless the subsequent user wilfully intended to trade on the registrant’s reputation or to cause dilution of the owner’s mark. If wilful intent is proven, the owner is entitled to the remedies set forth in this article, subject to the discretion of the court and the principles of equity.

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