Silly Sally has decided to name her new guitar pick the “Noise Pick.” Sally advertises her new product in a music industry magazine as the “Noise Pick ® .” Mr. Slate files an infringement and dilution lawsuit against Sally claiming her trademark is likely to cause confusion with his own trademark, the “Rockpick ® .” The Rockpick is a large mechanical machine used to smash boulders. Meanwhile, Dusty Grit has setup a Web site for his fictional product, a guitar pick that doubles as a nasal implement, which he calls the “Nose Pick™.” The Web site goes into great detail describing the guitar pick that doubles as a nose pick. Sally, believing
that the similarity will confuse her potential customers, files an infringement lawsuit against Dusty. Does Sally have a good legal argument? What defenses might Dusty raise? Sally has filed a motion for an injunction against Dusty based on the notion that his trade name is likely to cause dilution to her trademark, although since she has not sold any products yet, she is uncertain that she will be able to prove any actual economic harm. Can she still obtain an injunction? Dusty also has a message board on his Web site where visitors can “buy and sell picks of any kind.” Some of the message board participants have been offering fake “Noise picks” on the message board.

List the issues involved and probable outcomes.


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