PUBLISHED
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`
`LOUIS VUITTON MALLETIER S.A.,
`Plaintiff-Appellant,
`v.
`HAUTE DIGGITY DOG, LLC; VICTORIA
`D.N. DAUERNHEIM; WOOFIES, LLC,
`d/b/a Woofie’s Pet Boutique,
`Defendant-Appellees.
`
`INTERNATIONAL TRADEMARK
`ASSOCIATION,
`Amicus Supporting Appellant.
`
`No. 06-2267
`
`Appeal from the United States District Court
`for the Eastern District of Virginia, at Alexandria.
`James C. Cacheris, Senior District Judge.
`(1:06-cv-00321-JCC)
`
`Argued: September 26, 2007
`
`Decided: November 13, 2007
`
`Before NIEMEYER and TRAXLER, Circuit Judges, and
`Samuel G. WILSON, United States District Judge for the
`Western District of Virginia, sitting by designation.
`
`Affirmed by published opinion. Judge Niemeyer wrote the opinion,
`in which Judge Traxler and Judge Wilson joined.
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`2
`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`COUNSEL
`
`ARGUED: David Hal Bernstein, DEBEVOISE & PLIMPTON,
`L.L.P., New York, New York, for Amicus Supporting Appellant.
`Michael Abbott Grow, ARENT & FOX, P.L.L.C., Washington, D.C.,
`for Appellant. James D. Petruzzi, MASON & PETRUZZI, Houston,
`Texas, for Appellees. ON BRIEF: Savalle C. Sims, Ross Panko,
`ARENT & FOX, P.L.L.C., Washington, D.C., for Appellant. W.
`Michael Holm, WOMBLE, CARLYLE, SANDRIDGE & RICE,
`Tyson’s Corner, Virginia, for Appellees. Theodore H. Davis, Jr., Scot
`A. Duvall, Anne Gundelfinger, Steven Pokotilow, INTERNA-
`TIONAL TRADEMARK ASSOCIATION, New York, New York;
`Michael Potenza, Timothy T. Howard, DEBEVOISE & PLIMPTON,
`L.L.P., New York, New York, for Amicus Supporting Appellant.
`
`OPINION
`
`NIEMEYER, Circuit Judge:
`
`Louis Vuitton Malletier S.A., a French corporation located in Paris,
`that manufactures luxury luggage, handbags, and accessories, com-
`menced this action against Haute Diggity Dog, LLC, a Nevada corpo-
`ration that manufactures and sells pet products nationally, alleging
`trademark infringement under 15 U.S.C. § 1114(1)(a), trademark dilu-
`tion under 15 U.S.C. § 1125(c), copyright infringement under 17
`U.S.C. § 501, and related statutory and common law violations. Haute
`Diggity Dog manufactures, among other things, plush toys on which
`dogs can chew, which, it claims, parody famous trademarks on luxury
`products, including those of Louis Vuitton Malletier. The particular
`Haute Diggity Dog chew toys in question here are small imitations of
`handbags that are labeled "Chewy Vuiton" and that mimic Louis
`Vuitton Malletier’s LOUIS VUITTON handbags.
`
`On cross-motions for summary judgment, the district court con-
`cluded that Haute Diggity Dog’s "Chewy Vuiton" dog toys were suc-
`cessful parodies of Louis Vuitton Malletier’s trademarks, designs, and
`products, and on that basis, entered judgment in favor of Haute Dig-
`gity Dog on all of Louis Vuitton Malletier’s claims.
`
`

`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`3
`
`On appeal, we agree with the district court that Haute Diggity
`Dog’s products are not likely to cause confusion with those of Louis
`Vuitton Malletier and that Louis Vuitton Malletier’s copyright was
`not infringed. On the trademark dilution claim, however, we reject the
`district court’s reasoning but reach the same conclusion through a dif-
`ferent analysis. Accordingly, we affirm.
`
`I
`
`Louis Vuitton Malletier S.A. ("LVM") is a well known manufac-
`turer of luxury luggage, leather goods, handbags, and accessories,
`which it markets and sells worldwide. In connection with the sale of
`its products, LVM has adopted trademarks and trade dress that are
`well recognized and have become famous and distinct. Indeed, in
`2006, BusinessWeek ranked LOUIS VUITTON as the 17th "best
`brand" of all corporations in the world and the first "best brand" for
`any fashion business.
`
`LVM has registered trademarks for "LOUIS VUITTON," in con-
`nection with luggage and ladies’ handbags (the "LOUIS VUITTON
`mark"); for a stylized monogram of "LV," in connection with travel-
`ing bags and other goods (the "LV mark"); and for a monogram can-
`vas design consisting of a canvas with repetitions of the LV mark
`along with four-pointed stars, four-pointed stars inset in curved dia-
`monds, and four-pointed flowers inset in circles, in connection with
`traveling bags and other products (the "Monogram Canvas mark"). In
`2002, LVM adopted a brightly-colored version of the Monogram
`Canvas mark in which the LV mark and the designs were of various
`colors and the background was white (the "Multicolor design"), cre-
`ated in collaboration with Japanese artist Takashi Murakami. For the
`Multicolor design, LVM obtained a copyright in 2004. In 2005, LVM
`adopted another design consisting of a canvas with repetitions of the
`LV mark and smiling cherries on a brown background (the "Cherry
`design").
`
`As LVM points out, the Multicolor design and the Cherry design
`attracted immediate and extraordinary media attention and publicity
`in magazines such as Vogue, W, Elle, Harper’s Bazaar, Us Weekly,
`Life and Style, Travel & Leisure, People, In Style, and Jane. The press
`published photographs showing celebrities carrying these handbags,
`
`

`
`4
`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`including Jennifer Lopez, Madonna, Eve, Elizabeth Hurley, Carmen
`Electra, and Anna Kournikova, among others. When the Multicolor
`design first appeared in 2003, the magazines typically reported, "The
`Murakami designs for Louis Vuitton, which were the hit of the sum-
`mer, came with hefty price tags and a long waiting list." People Mag-
`azine said, "the wait list is in the thousands." The handbags retailed
`in the range of $995 for a medium handbag to $4500 for a large travel
`bag. The medium size handbag that appears to be the model for the
`"Chewy Vuiton" dog toy retailed for $1190. The Cherry design
`appeared in 2005, and the handbags including that design were priced
`similarly — in the range of $995 to $2740. LVM does not currently
`market products using the Cherry design.
`
`The original LOUIS VUITTON, LV, and Monogram Canvas
`marks, however, have been used as identifiers of LVM products con-
`tinuously since 1896.
`
`During the period 2003-2005, LVM spent more than $48 million
`advertising products using its marks and designs, including more than
`$4 million for the Multicolor design. It sells its products exclusively
`in LVM stores and in its own in-store boutiques that are contained
`within department stores such as Saks Fifth Avenue, Bloomingdale’s,
`Neiman Marcus, and Macy’s. LVM also advertises its products on the
`Internet through the specific websites www.louisvuitton.com and
`www.eluxury.com.
`
`Although better known for its handbags and luggage, LVM also
`markets a limited selection of luxury pet accessories — collars,
`leashes, and dog carriers — which bear the Monogram Canvas mark
`and the Multicolor design. These items range in price from approxi-
`mately $200 to $1600. LVM does not make dog toys.
`
`Haute Diggity Dog, LLC, which is a relatively small and relatively
`new business located in Nevada, manufactures and sells nationally —
`primarily through pet stores — a line of pet chew toys and beds
`whose names parody elegant high-end brands of products such as per-
`fume, cars, shoes, sparkling wine, and handbags. These include — in
`addition to Chewy Vuiton (LOUIS VUITTON) — Chewnel No. 5
`(Chanel No. 5), Furcedes (Mercedes), Jimmy Chew (Jimmy Choo),
`Dog Perignonn (Dom Perignon), Sniffany & Co. (Tiffany & Co.), and
`
`

`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`5
`
`Dogior (Dior). The chew toys and pet beds are plush, made of polyes-
`ter, and have a shape and design that loosely imitate the signature
`product of the targeted brand. They are mostly distributed and sold
`through pet stores, although one or two Macy’s stores carries Haute
`Diggity Dog’s products. The dog toys are generally sold for less than
`$20, although larger versions of some of Haute Diggity Dog’s plush
`dog beds sell for more than $100.
`
`Haute Diggity Dog’s "Chewy Vuiton" dog toys, in particular,
`loosely resemble miniature handbags and undisputedly evoke LVM
`handbags of similar shape, design, and color. In lieu of the LOUIS
`VUITTON mark, the dog toy uses "Chewy Vuiton"; in lieu of the LV
`mark, it uses "CV"; and the other symbols and colors employed are
`imitations, but not exact ones, of those used in the LVM Multicolor
`and Cherry designs.
`
`In 2002, LVM commenced this action, naming as defendants Haute
`Diggity Dog; Victoria D.N. Dauernheim, the principal owner of
`Haute Diggity Dog; and Woofies, LLC, a retailer of Haute Diggity
`Dog’s products, located in Asburn, Virginia, for trademark, trade
`dress, and copyright infringement. Its complaint includes counts for
`trademark counterfeiting, under 15 U.S.C. § 1114(1)(a); trademark
`infringement, under 15 U.S.C. § 1114(1)(a); trade dress infringement,
`under 15 U.S.C. § 1125(a)(1); unfair competition, under 15 U.S.C.
`§ 1125(a)(1); trademark dilution, under 15 U.S.C. § 1125(c); trade-
`mark infringement, under Virginia common law; trade dress infringe-
`ment, under Virginia common law; unfair competition, under Virginia
`common law; copyright infringement of the Multicolor design, under
`17 U.S.C. § 501; and violation of the Virginia Consumer Protection
`Act, under Virginia Code § 59.1-200. On cross-motions for summary
`judgment, the district court granted Haute Diggity Dog’s motion and
`denied LVM’s motion, entering judgment in favor of Haute Diggity
`Dog on all of the claims. It rested its analysis on each count princi-
`pally on the conclusion that Haute Diggity Dog’s products amounted
`to a successful parody of LVM’s marks, trade dress, and copyright.
`See Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 464 F.
`Supp. 2d 495 (E.D. Va. 2006).
`
`LVM appealed and now challenges, as a matter of law, virtually
`every ruling made by the district court.
`
`

`
`6
`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`II
`
`LVM contends first that Haute Diggity Dog’s marketing and sale
`of its "Chewy Vuiton" dog toys infringe its trademarks because the
`advertising and sale of the "Chewy Vuiton" dog toys is likely to cause
`confusion. See 15 U.S.C. § 1114(1)(a). LVM argues:
`
`The defendants in this case are using almost an exact imita-
`tion of the house mark VUITTON (merely omitting a sec-
`ond "T"), and
`they painstakingly copied Vuitton’s
`Monogram design mark, right down to the exact arrange-
`ment and sequence of geometric symbols. They also used
`the same design marks, trade dress, and color combinations
`embodied in Vuitton’s Monogram Multicolor and Mono-
`gram Cerises [Cherry] handbag collections. Moreover, HDD
`did not add any language to distinguish its products from
`Vuitton’s, and its products are not "widely recognized."1
`
`Haute Diggity Dog contends that there is no evidence of confusion,
`nor could a reasonable factfinder conclude that there is a likelihood
`of confusion, because it successfully markets its products as parodies
`of famous marks such as those of LVM. It asserts that "precisely
`because of the [famous] mark’s fame and popularity . . . confusion is
`avoided, and it is this lack of confusion that a parodist depends upon
`to achieve the parody." Thus, responding to LVM’s claims of trade-
`mark infringement, Haute Diggity Dog argues:
`
`The marks are undeniably similar in certain respects. There
`are visual and phonetic similarities. [Haute Diggity Dog]
`
`1We take this argument to be that Haute Diggity Dog is copying too
`closely the marks and trade dress of LVM. But we reject the statement
`that LVM has a trademark consisting of the one word VUITTON. At oral
`argument, counsel for LVM conceded that the trademark is "LOUIS
`VUITTON," and it is always used in that manner rather than simply as
`"VUITTON." It appears that LVM has employed this technique to pro-
`vide a more narrow, but irrelevant, comparison between its VUITTON
`and Haute Diggity Dog’s "Vuiton." In resolving this case, however, we
`take LVM’s arguments to compare "LOUIS VUITTON" with Haute Dig-
`gity Dog’s "Chewy Vuiton."
`
`

`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`7
`
`admits that the product name and design mimics LVM’s and
`is based on the LVM marks. It is necessary for the pet prod-
`ucts to conjure up the original designer mark for there to be
`a parody at all. However, a parody also relies on "equally
`obvious dissimilarit[ies] between the marks" to produce its
`desired effect.
`
`Concluding that Haute Diggity Dog did not create any likelihood
`of confusion as a matter of law, the district court granted summary
`judgment to Haute Diggity Dog. Louis Vuitton Malletier, 464 F.
`Supp. 2d at 503, 508. We review its order de novo. See CareFirst of
`Md., Inc. v. First Care, P.C., 434 F.3d 263, 267 (4th Cir. 2006).
`
`To prove trademark infringement, LVM must show (1) that it owns
`a valid and protectable mark; (2) that Haute Diggity Dog uses a "re-
`production, counterfeit, copy, or colorable imitation" of that mark in
`commerce and without LVM’s consent; and (3) that Haute Diggity
`Dog’s use is likely to cause confusion. 15 U.S.C. § 1114(1)(a); Care-
`First, 434 F.3d at 267. The validity and protectability of LVM’s
`marks are not at issue in this case, nor is the fact that Haute Diggity
`Dog uses a colorable imitation of LVM’s mark. Therefore, we give
`the first two elements no further attention. To determine whether the
`"Chewy Vuiton" product line creates a likelihood of confusion, we
`have identified several nonexclusive factors to consider: (1) the
`strength or distinctiveness of the plaintiff’s mark; (2) the similarity of
`the two marks; (3) the similarity of the goods or services the marks
`identify; (4) the similarity of the facilities the two parties use in their
`businesses; (5) the similarity of the advertising used by the two par-
`ties; (6) the defendant’s intent; and (7) actual confusion. See Pizzeria
`Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir. 1984). These
`Pizzeria Uno factors are not always weighted equally, and not all fac-
`tors are relevant in every case. See CareFirst, 434 F.3d at 268.
`
`Because Haute Diggity Dog’s arguments with respect to the Pizze-
`ria Uno factors depend to a great extent on whether its products and
`marks are successful parodies, we consider first whether Haute Dig-
`gity Dog’s products, marks, and trade dress are indeed successful par-
`odies of LVM’s marks and trade dress.
`
`For trademark purposes, "[a] ‘parody’ is defined as a simple form
`of entertainment conveyed by juxtaposing the irreverent representa-
`
`

`
`8
`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`tion of the trademark with the idealized image created by the mark’s
`owner." People for the Ethical Treatment of Animals v. Doughney
`("PETA"), 263 F.3d 359, 366 (4th Cir. 2001) (internal quotation
`marks omitted). "A parody must convey two simultaneous — and
`contradictory — messages: that it is the original, but also that it is not
`the original and is instead a parody." Id. (internal quotation marks and
`citation omitted). This second message must not only differentiate the
`alleged parody from the original but must also communicate some
`articulable element of satire, ridicule, joking, or amusement. Thus,
`"[a] parody relies upon a difference from the original mark, presum-
`ably a humorous difference, in order to produce its desired effect."
`Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1486
`(10th Cir. 1987) (finding the use of "Lardashe" jeans for larger
`women to be a successful and permissible parody of "Jordache"
`jeans).
`
`When applying the PETA criteria to the facts of this case, we agree
`with the district court that the "Chewy Vuiton" dog toys are success-
`ful parodies of LVM handbags and the LVM marks and trade dress
`used in connection with the marketing and sale of those handbags.
`First, the pet chew toy is obviously an irreverent, and indeed inten-
`tional, representation of an LVM handbag, albeit much smaller and
`coarser. The dog toy is shaped roughly like a handbag; its name
`"Chewy Vuiton" sounds like and rhymes with LOUIS VUITTON; its
`monogram CV mimics LVM’s LV mark; the repetitious design
`clearly imitates the design on the LVM handbag; and the coloring is
`similar. In short, the dog toy is a small, plush imitation of an LVM
`handbag carried by women, which invokes the marks and design of
`the handbag, albeit irreverently and incompletely. No one can doubt
`that LVM handbags are the target of the imitation by Haute Diggity
`Dog’s "Chewy Vuiton" dog toys.
`
`At the same time, no one can doubt also that the "Chewy Vuiton"
`dog toy is not the "idealized image" of the mark created by LVM. The
`differences are immediate, beginning with the fact that the "Chewy
`Vuiton" product is a dog toy, not an expensive, luxury LOUIS VUIT-
`TON handbag. The toy is smaller, it is plush, and virtually all of its
`designs differ. Thus, "Chewy Vuiton" is not LOUIS VUITTON
`("Chewy" is not "LOUIS" and "Vuiton" is not "VUITTON," with its
`two Ts); CV is not LV; the designs on the dog toy are simplified and
`
`

`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`9
`
`crude, not detailed and distinguished. The toys are inexpensive; the
`handbags are expensive and marketed to be expensive. And, of
`course, as a dog toy, one must buy it with pet supplies and cannot buy
`it at an exclusive LVM store or boutique within a department store.
`In short, the Haute Diggity Dog "Chewy Vuiton" dog toy undoubt-
`edly and deliberately conjures up the famous LVM marks and trade
`dress, but at the same time, it communicates that it is not the LVM
`product.
`
`Finally, the juxtaposition of the similar and dissimilar — the irrev-
`erent representation and the idealized image of an LVM handbag —
`immediately conveys a joking and amusing parody. The furry little
`"Chewy Vuiton" imitation, as something to be chewed by a dog,
`pokes fun at the elegance and expensiveness of a LOUIS VUITTON
`handbag, which must not be chewed by a dog. The LVM handbag is
`provided for the most elegant and well-to-do celebrity, to proudly dis-
`play to the public and the press, whereas the imitation "Chewy Vui-
`ton" "handbag" is designed to mock the celebrity and be used by a
`dog. The dog toy irreverently presents haute couture as an object for
`casual canine destruction. The satire is unmistakable. The dog toy is
`a comment on the rich and famous, on the LOUIS VUITTON name
`and related marks, and on conspicuous consumption in general. This
`parody is enhanced by the fact that "Chewy Vuiton" dog toys are sold
`with similar parodies of other famous and expensive brands —
`"Chewnel No. 5" targeting "Chanel No. 5"; "Dog Perignonn" target-
`ing "Dom Perignon"; and "Sniffany & Co." targeting "Tiffany & Co."
`
`We conclude that the PETA criteria are amply satisfied in this case
`and that the "Chewy Vuiton" dog toys convey "just enough of the
`original design to allow the consumer to appreciate the point of par-
`ody," but stop well short of appropriating the entire marks that LVM
`claims. PETA, 263 F.3d at 366 (quoting Jordache, 828 F.2d at 1486).
`
`Finding that Haute Diggity Dog’s parody is successful, however,
`does not end the inquiry into whether Haute Diggity Dog’s "Chewy
`Vuiton" products create a likelihood of confusion. See 6 J. Thomas
`McCarthy, Trademarks and Unfair Competition § 31:153, at 262 (4th
`ed. 2007) ("There are confusing parodies and non-confusing parodies.
`All they have in common is an attempt at humor through the use of
`someone else’s trademark"). The finding of a successful parody only
`
`

`
`10
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`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`influences the way in which the Pizzeria Uno factors are applied. See,
`e.g., Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 321
`(4th Cir. 1992) (observing that parody alters the likelihood-of-
`confusion analysis). Indeed, it becomes apparent that an effective par-
`ody will actually diminish the likelihood of confusion, while an inef-
`fective parody does not. We now turn to the Pizzeria Uno factors.
`
`A
`
`As to the first Pizzeria Uno factor, the parties agree that LVM’s
`marks are strong and widely recognized. They do not agree, however,
`as to the consequences of this fact. LVM maintains that a strong,
`famous mark is entitled, as a matter of law, to broad protection. While
`it is true that finding a mark to be strong and famous usually favors
`the plaintiff in a trademark infringement case, the opposite may be
`true when a legitimate claim of parody is involved. As the district
`court observed, "In cases of parody, a strong mark’s fame and popu-
`larity is precisely the mechanism by which likelihood of confusion is
`avoided." Louis Vuitton Malletier, 464 F. Supp. 2d at 499 (citing Hor-
`mel Foods Corp. v. Jim Henson Prods., Inc., 73 F.3d 497, 503-04 (2d
`Cir. 1996); Schieffelin & Co. v. Jack Co. of Boca, Inc., 850 F. Supp.
`232, 248 (S.D.N.Y. 1994)). "An intent to parody is not an intent to
`confuse the public." Jordache, 828 F.2d at 1486.
`
`We agree with the district court. It is a matter of common sense
`that the strength of a famous mark allows consumers immediately to
`perceive the target of the parody, while simultaneously allowing them
`to recognize the changes to the mark that make the parody funny or
`biting. See Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221
`F. Supp. 2d 410, 416 (S.D.N.Y. 2002) (noting that the strength of the
`"TOMMY HILFIGER" fashion mark did not favor the mark’s owner
`in an infringement case against "TIMMY HOLEDIGGER" novelty
`pet perfume). In this case, precisely because LOUIS VUITTON is so
`strong a mark and so well recognized as a luxury handbag brand from
`LVM, consumers readily recognize that when they see a "Chewy Vui-
`ton" pet toy, they see a parody. Thus, the strength of LVM’s marks
`in this case does not help LVM establish a likelihood of confusion.
`
`B
`
`With respect to the second Pizzeria Uno factor, the similarities
`between the marks, the usage by Haute Diggity Dog again converts
`
`

`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`11
`
`what might be a problem for Haute Diggity Dog into a disfavored
`conclusion for LVM.
`
`Haute Diggity Dog concedes that its marks are and were designed
`to be somewhat similar to LVM’s marks. But that is the essence of
`a parody — the invocation of a famous mark in the consumer’s mind,
`so long as the distinction between the marks is also readily recog-
`nized. While a trademark parody necessarily copies enough of the
`original design to bring it to mind as a target, a successful parody also
`distinguishes itself and, because of the implicit message communi-
`cated by the parody, allows the consumer to appreciate it. See PETA,
`263 F.3d at 366 (citing Jordache, 828 F.2d at 1486); Anheuser-Busch,
`962 F.2d at 321.
`
`In concluding that Haute Diggity Dog has a successful parody, we
`have impliedly concluded that Haute Diggity Dog appropriately mim-
`icked a part of the LVM marks, but at the same time sufficiently dis-
`tinguished its own product to communicate the satire. The differences
`are sufficiently obvious and the parody sufficiently blatant that a con-
`sumer encountering a "Chewy Vuiton" dog toy would not mistake its
`source or sponsorship on the basis of mark similarity.
`
`This conclusion is reinforced when we consider how the parties
`actually use their marks in the marketplace. See CareFirst, 434 F.3d
`at 267 (citing What-A-Burger of Va., Inc. v. Whataburger, Inc., 357
`F.3d 441, 450 (4th Cir. 2004)); Lamparello v. Falwell, 420 F.3d 309,
`316 (4th Cir. 2005); Hormel Foods, 73 F.3d at 503. The record amply
`supports Haute Diggity Dog’s contention that its "Chewy Vuiton"
`toys for dogs are generally sold alongside other pet products, as well
`as toys that parody other luxury brands, whereas LVM markets its
`handbags as a top-end luxury item to be purchased only in its own
`stores or in its own boutiques within department stores. These market-
`ing channels further emphasize that "Chewy Vuiton" dog toys are not,
`in fact, LOUIS VUITTON products.
`
`C
`
`Nor does LVM find support from the third Pizzeria Uno factor, the
`similarity of the products themselves. It is obvious that a "Chewy
`Vuiton" plush imitation handbag, which does not open and is manu-
`
`

`
`12
`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`factured as a dog toy, is not a LOUIS VUITTON handbag sold by
`LVM. Even LVM’s most proximate products — dog collars, leashes,
`and pet carriers — are fashion accessories, not dog toys. As Haute
`Diggity Dog points out, LVM does not make pet chew toys and likely
`does not intend to do so in the future. Even if LVM were to make dog
`toys in the future, the fact remains that the products at issue are not
`similar in any relevant respect, and this factor does not favor LVM.
`
`D
`
`The fourth and fifth Pizzeria Uno factors, relating to the similarity
`of facilities and advertising channels, have already been mentioned.
`LVM products are sold exclusively through its own stores or its own
`boutiques within department stores. It also sells its products on the
`Internet through an LVM-authorized website. In contrast, "Chewy
`Vuiton" products are sold primarily through traditional and Internet
`pet stores, although they might also be sold in some department
`stores. The record demonstrates that both LVM handbags and
`"Chewy Vuiton" dog toys are sold at a Macy’s department store in
`New York. As a general matter, however, there is little overlap in the
`individual retail stores selling the brands.
`
`Likewise with respect to advertising, there is little or no overlap.
`LVM markets LOUIS VUITTON handbags through high-end fashion
`magazines, while "Chewy Vuiton" products are advertised primarily
`through pet-supply channels.
`
`The overlap in facilities and advertising demonstrated by the record
`is so minimal as to be practically nonexistent. "Chewy Vuiton" toys
`and LOUIS VUITTON products are neither sold nor advertised in the
`same way, and the de minimis overlap lends insignificant support to
`LVM on this factor.
`
`E
`
`The sixth factor, relating to Haute Diggity Dog’s intent, again is
`neutralized by the fact that Haute Diggity Dog markets a parody of
`LVM products. As other courts have recognized, "An intent to parody
`is not an intent to confuse the public." Jordache, 828 F.2d at 1486.
`
`

`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`13
`
`Despite Haute Diggity Dog’s obvious intent to profit from its use of
`parodies, this action does not amount to a bad faith intent to create
`consumer confusion. To the contrary, the intent is to do just the oppo-
`site — to evoke a humorous, satirical association that distinguishes
`the products. This factor does not favor LVM.
`
`F
`
`On the actual confusion factor, it is well established that no actual
`confusion is required to prove a case of trademark infringement,
`although the presence of actual confusion can be persuasive evidence
`relating to a likelihood of confusion. See CareFirst, 434 F.3d at 268.
`
`While LVM conceded in the district court that there was no evi-
`dence of actual confusion, on appeal it points to incidents where
`retailers misspelled "Chewy Vuiton" on invoices or order forms,
`using two Ts instead of one. Many of these invoices also reflect
`simultaneous orders for multiple types of Haute Diggity Dog parody
`products, which belies the notion that any actual confusion existed as
`to the source of "Chewy Vuiton" plush toys. The misspellings pointed
`out by LVM are far more likely in this context to indicate confusion
`over how to spell the product name than any confusion over the
`source or sponsorship of the "Chewy Vuiton" dog toys. We conclude
`that this factor favors Haute Diggity Dog.
`
`In sum, the likelihood-of-confusion factors substantially favor
`Haute Diggity Dog. But consideration of these factors is only a proxy
`for the ultimate statutory test of whether Haute Diggity Dog’s market-
`ing, sale, and distribution of "Chewy Vuiton" dog toys is likely to
`cause confusion. Recognizing that "Chewy Vuiton" is an obvious par-
`ody and applying the Pizzeria Uno factors, we conclude that LVM
`has failed to demonstrate any likelihood of confusion. Accordingly,
`we affirm the district court’s grant of summary judgment in favor of
`Haute Diggity Dog on the issue of trademark infringement.
`
`III
`
`LVM also contends that Haute Diggity Dog’s advertising, sale, and
`distribution of the "Chewy Vuiton" dog toys dilutes its LOUIS VUIT-
`
`

`
`14
`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`TON, LV, and Monogram Canvas marks, which are famous and dis-
`tinctive, in violation of the Trademark Dilution Revision Act of 2006
`("TDRA"), 15 U.S.C.A. § 1125(c) (West Supp. 2007). It argues, "Be-
`fore the district court’s decision, Vuitton’s famous marks were
`unblurred by any third party trademark use." "Allowing defendants to
`become the first to use similar marks will obviously blur and dilute
`the Vuitton Marks." It also contends that "Chewy Vuiton" dog toys
`are likely to tarnish LVM’s marks because they "pose a choking haz-
`ard for some dogs."
`
`Haute Diggity Dog urges that, in applying the TDRA to the cir-
`cumstances before us, we reject LVM’s suggestion that a parody "au-
`tomatically" gives rise to "actionable dilution." Haute Diggity Dog
`contends that only marks that are "identical or substantially similar"
`can give rise to actionable dilution, and its "Chewy Vuiton" marks are
`not identical or sufficiently similar to LVM’s marks. It also argues
`that "[its] spoof, like other obvious parodies," "‘tends to increase pub-
`lic identification’ of [LVM’s] mark with [LVM]," quoting Jordache,
`828 F.2d at 1490, rather than impairing its distinctiveness, as the
`TDRA requires. As for LVM’s tarnishment claim, Haute Diggity Dog
`argues that LVM’s position is at best based on speculation and that
`LVM has made no showing of a likelihood of dilution by tarnishment.
`
`Claims for trademark dilution are authorized by the TDRA, a rela-
`tively recent enactment,2 which provides in relevant part:
`
`Subject to the principles of equity, the owner of a famous
`mark . . . shall be entitled to an injunction against another
`
`2The TDRA, Pub. L. No. 109-312, 120 Stat. 1730 (2006), amended the
`Federal Trademark Dilution Act of 1995, Pub. L. No. 104-98, 109 Stat.
`985 (1996), which added a "dilution" cause of action to § 43 of the Lan-
`ham Act. When the Supreme Court held that the Federal Trademark
`Dilution Act required proof of actual dilution and actual economic harm,
`see Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 432-33 (2003);
`see also Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah
`Div. of Travel Dev., 170 F.3d 449, 461 (4th Cir. 1999), Congress
`amended the Act principally to overrule Moseley and to require that only
`a likelihood of dilution need be proved. See 15 U.S.C.A. § 1125(c)(1)
`(West Supp. 2007).
`
`

`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`15
`
`person who . . . commences use of a mark or trade name in
`commerce that is likely to cause dilution by blurring or dilu-
`tion by tarnishment of the famous mark, regardless of the
`presence or absence of actual or likely confusion, of compe-
`tition, or of actual economic injury.
`
`15 U.S.C.A. § 1125(c)(1) (emphasis added). A mark is "famous"
`when it is "widely recognized by the general consuming public of the
`United States as a designation of source of the goods or services of
`the mark’s owner." Id. § 1125(c)(2)(A). Creating causes of action for
`only dilution by blurring and dilution by tarnishment, the TDRA
`defines "dilution by blurring" as the "association arising from the sim-
`ilarity between a mark or trade name and a famous mark that impairs
`the distinctiveness of the famous mark." Id. § 1125(c)(2)(B). It
`defines "dilution by tarnishment" as the "association arising from the
`similarity between a mark or trade name and a famous mark that
`harms the reputation of the famous mark." Id. § 1125(c)(2)(C).
`
`Thus, to state a dilution claim under the TDRA, a plaintiff must
`show:
`
`(1)
`
`(2)
`
`(3)
`
`(4)
`
`that the plaintiff owns a famous mark that is distinc-
`tive;
`
`that the defendant has commenced using a mark in
`commerce that allegedly is diluting the famous mark;
`
`that a similarity between the defendant’s mark and the
`famous mark gives rise to an association between the
`marks; and
`
`that the association is likely to impair the distinctive-
`ness of the famous mark or likely to harm the reputa-
`tion of the famous mark.
`
`In the context of blurring, distinctiveness refers to the ability of the
`famous mark uniquely to identify a single source and thus maintain
`its selling power. See N.Y. Stock Exch. v. N.Y., N.Y. Hotel LLC, 293
`F.3d 550, 558 (2d Cir. 2002) (observing that blurring occurs where
`
`

`
`16
`
`LOUIS VUITTON MALLETIER v. HAUTE DIGGITY DOG
`
`the defendant’s use creates "the possibility that the [famous] mark
`will lose its ability to serve as a unique identifier of the plaintiff’s
`product") (quoting Deere & Co. v. MTD Prods., Inc., 41 F.3d 39, 43
`(2d Cir. 1994)); Playboy Entm’t, Inc. v. Welles, 279 F.3d 796, 805
`(9th Cir. 2002) (same). In proving a dilution claim under the TDRA,
`the plaintiff need not