The Ninth Circuit yesterday published a new dilution case, affirming the Central District of California’s finding of dilution in Horphag Research Ltd. v. Garcia, 2007 WL 45910. The claim turned on defendant Larry Garcia’s use of plaintiff Horphag’s trademark PYCNOGENOL on Mr. Garcia’s Web site, HealthierLife.com.
The Ninth Circuit found that Mr. Garcia’s using PYCNOGENOL as a generic term, selling a product he claimed was the “true Pycnogenol,” and altering quotations from scientific literature discussing 
PYCNOGENOL to make them appear as though they were discussing Mr. Garcia’s competing product blurred Horphag’s famous mark. The court found Horphag met the Moseley v. V. Secret actual dilution standard by offering testimony that consumers who contacted Horphag learned — after purchasing Mr. Garcia’s product — that the product they had purchased was not Horphag’s PYCNOGENOL product.
According to the court, PYCNOGENOL is a chemical antioxidant that “supposedly assists in nutritional distribution and proper circulation” and is one of the “fifteen most sold” herbal supplements in the United States.