The Supreme Court considers the question in a case that will set a US standard.
When Victor and Cathy Moseley opened a lingerie and adult novelty store in a strip mall in Elizabethtown, Ky., they decided to name their new business Victor's Secret.
It wasn't a secret for long.
Within two weeks, the Moseleys received a letter from a lawyer for Victoria's Secret, the intimate-apparel retail and catalog company, demanding that they change their business name or face legal action.
The Moseleys, who had invested everything they owned into their fledgling store, quickly altered the business name to Victor's Little Secret.
Not different enough, countered lawyers for Victoria's Secret. They filed suit in federal court, alleging that the Moseleys were violating the famous Victoria's Secret trademark by using a similar-sounding name in an attempt to attract business.
The Moseleys countered that their name accurately reflected the first name of the owner of the store, and that they used the word "secret" as a kind of inside joke because they wanted to keep the new business a secret from a former boss at a competing store.
A federal judge and a federal appeals court panel sided with Victoria's Secret.
The dispute arrives at the US Supreme Court Tuesday, where the justices will examine whether federal trademark law should be construed narrowly or broadly. The decision will set a national standard for future cases.
Specifically, the justices will consider whether a suing company has to produce evidence of actual economic harm as a result of another business using a similar name, or whether judges may instead rely on the mere likelihood of such use causing dilution of a famous trademark.