Visa International has moved for summary judgment on its claim for trademark dilution under the Federal Trademark Dilution Act ("FTDA"), 15 U.S.C. ยง 1125(c). Courts in this Circuit and District have granted summary judgment on dilution claims and have found defendants to have violated the FTDA as a matter of law. See Panavision International, L.P. v. Toeppen. 141 F.3d 1316 (9th Cir. 1998); Mirage v. Stirpe, 152 F. Supp.2d 1208, 1216-17 (D. Nev. 2000). The FTDA protects famous trademarks from third-party use that dilutes "the distinctive quality of the mark."
Ethicon's argument that it is entitled to summary judgment on the loss of consortium claim based merely on the fact that Mr. Enborg did not oppose its motion for summary judgment is without merit because the burden is on Ethicon to make an initial showing that it is entitled to summary judgment. Absent such a showing, there was no obligation on Mr. Enborg's part to respond in any fashion. See Burns v. Mayer, 175 F.Supp.2d 1259, 1270 (D. Nev. 2001) (citing Mirage Resorts, Inc. v. Stirpe, 152 F.Supp.2d 1208, 1214-15 (D. Nev. 2000) (denying summary judgment even though no opposition memorandum was filed)).
Regardless, when the moving party fails to show that there are no material issues of fact, as Defendants have here, the opposing party is not even required to respond. See Mirage Resorts, Inc. v. Stirpe, 152 F. Supp.2d 1208, 1214-15 (Nev. 2000) (denying summary judgment even though no opposition memorandum was filed). As for Defendants complaints about hearsay, the Court is fairly confident in its ability to discern fact from fiction. If Defendants feel that the affiants' testimony is unreliable or contains hearsay, they are free to make such objections at trial.