Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  February 7, 2011                                                                                Robert P. Young, Jr.,
                                                                                Chief Justice

  141386                                                                                Michael F. Cavanagh
                                                                                Marilyn Kelly
                                                                                Stephen J. Markman
                                                                                Diane M. Hathaway
                                                                                Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                                         Brian K. Zahra,
            Plaintiff-Appellee,                                                                                Justices

  v                                                                 SC: 141386
                                                                    COA: 296120
                                                                    Wayne CC: 06-010757-FC
  NATHANIEL SMITH,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the June 9, 2010 order of
  the Court of Appeals is considered, and it is DENIED, because the defendant has failed to
  meet the burden of establishing entitlement to relief under MCR 6.508(D).

                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           February 7, 2011                    _________________________________________
           s0131                                                               Clerk


42 So.3d 653 (2010)
Robert Mitchell HILLIARD, Appellant
v.
STATE of Mississippi, Appellee.
No. 2008-KA-02055-COA.
Court of Appeals of Mississippi.
August 24, 2010.
*654 Latrice Westbrooks, Jackson, attorney for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
Before KING, C.J., BARNES and MAXWELL, JJ.
BARNES, J., for the Court:
¶ 1. Robert Mitchell Hilliard appeals his conviction for the sale of a Schedule II controlled substance (cocaine) and the resulting sentence. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. On September 24, 2007, Phillip Melton was arrested by the Flowood Police Department on two counts of possession of a controlled substance (hydrocodone and Xanax®), an expired tag, and a suspended driver's license. Melton, a habitual offender, was on house arrest at the time. Melton agreed to cooperate with the police and act as a confidential informant, making controlled drug purchases or "buy-busts." Later that evening, the police gave Melton two hundred dollars to purchase drugs and attached a body transmitter, or "wire," to Melton. After the first drug purchase and subsequent arrest, Melton was searched. One of the officers testified that drugs were found concealed in Melton's mouth. As a result, the officers took Melton back to the police station and performed a strip search before the second controlled drug purchase.
¶ 3. Melton, in the presence of the police, called Hilliard on his cell phone and told him that he wanted to purchase two hundred dollars' worth of cocaine. Approximately thirty minutes later, Hilliard arrived at the pre-arranged meeting site, and he and Melton exchanged drugs and money through the window of Hilliard's car; this exchange was witnessed by the police. Hilliard started to drive away but was quickly stopped by law enforcement. No drugs, weapons, or drug money was found in the car. However, a quick search of the surrounding area was conducted, *655 and the "drug buy" money was recovered approximately one hundred yards from where the transaction took place. A police officer later testified that the police-car video showed that Hilliard threw something out the window when the police car's blue lights were activated.
¶ 4. After a jury trial, Hilliard was convicted of the sale of a Schedule II controlled substance (cocaine). As Hilliard had a previous conviction for possession of a controlled substance, he was given an enhanced sentence under Mississippi Code Annotated section 41-29-147 (Rev.2009). Hilliard was sentenced to forty-five years in the custody of the Mississippi Department of Corrections, but after he serves thirty years in custody, he is to be released and placed on supervised post-release supervision for five years. Hilliard was also ordered to pay court costs, fees, and assessments totaling $1,307.50, and he was fined $10,000, with $5,000 suspended.
¶ 5. On October 31, 2008, Hilliard filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. A hearing on the motion was set for December 8, 2008. Hilliard had already filed his notice of appeal on December 1, 2008, prior to any ruling by the circuit court on the motion. No decision on Hilliard's motion had been filed more than a year later. This Court entered an order on April 15, 2010, requesting that the circuit court rule on the motion in order that this Court might obtain jurisdiction over the appeal. See M.R.A.P. 4(e). The circuit court denied Hilliard's motion on April, 19, 2010, and we now consider the merits of this appeal.

I. Whether the circuit court erred in denying Hilliard's motion for continuance.
¶ 6. The State submitted the audio recording of the drug-sale transaction and the video of the traffic stop of Hilliard that immediately followed the drug sale to defense counsel on the morning of the pretrial conference, one day before trial. Defense counsel entered a motion for a continuance in order to have more time to review the tapes. Additionally, the defendant stated that he needed more time to hire new counsel. The circuit court judge denied the motion for continuance.
¶ 7. This Court reviews a circuit court's grant or denial of a motion for continuance under an abuse-of-discretion standard and will only reverse "when manifest injustice appears to have resulted from the decision to deny the continuance." Watson v. State, 991 So.2d 662, 667 (¶ 13) (Miss.Ct.App.2008) (quoting Jacobs v. State, 870 So.2d 1202, 1205 (¶ 7) (Miss. 2004)).
¶ 8. At the hearing on the pretrial motion, the State contended that it had no intention of using the audio and video evidence at trial. Hilliard claims, however, that the State alluded to the tapes during the trial. The first mention of any recording is during the State's direct examination of Melton, when it asked whether a "body wire or audio monitoring device" had been installed on Melton; Melton answered in the affirmative. Additionally, there was testimony by Officer Donald McBee during direct examination that the traffic-stop video showed money being thrown from the vehicle. Hilliard argues that nothing corroborates this testimony. We disagree. Officer Robert Cullom testified that he searched the roadside after the traffic stop and found the "drug buy" money on the ground.
¶ 9. Furthermore, defense counsel never objected to these questions or testimony. Generally, the "[f]ailure to object at trial acts as a procedural bar in an appeal." Jackson v. State, 832 So.2d 579, *656 581 (¶ 3) (Miss.Ct.App.2002) (citing Carr v. State, 655 So.2d 824, 853 (Miss.1995)). We observe that defense counsel also thoroughly questioned the police officers, during cross-examination, regarding the audio-taped transaction and the video of the traffic stop.
¶ 10. As for Hilliard's request for new counsel, the circuit court noted that the trial date had been set for several months, giving Hilliard ample time to acquire new counsel. Current defense counsel told the circuit judge that he was ready and willing to proceed to trial. We find no abuse of discretion in the circuit court's denial of Hilliard's motion for a continuance.

II. Whether the prosecutor's comments during closing arguments were prejudicial.
¶ 11. This Court reviews alleged misconduct by counsel during opening statements or closing arguments to see if "the natural and probable effect of the improper argument ... create[s] unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created." Baker v. State, 991 So.2d 185, 188 (¶ 12) (Miss.Ct.App.2008) (quoting Sheppard v. State, 777 So.2d 659, 661 (¶ 7) (Miss.2000)). During closing arguments, the prosecution made a statement that defense counsel was going to "talk about that this defendant lied." Hilliard's counsel objected and moved for a mistrial. The State clarified that it was referring to Melton, the confidential informant, and admitted its error. Although he did not grant a mistrial, the circuit judge sustained the objection, informed the jury that the statement was made in error, and reminded the jury that they could not "hold against [Hilliard] the fact that he did not testify." We find this statement by the prosecution was not prejudicial to Hilliard.
¶ 12. Hilliard also contends that the State's remarkthat the defense "could have introduced" the video or audio tapes into evidence if it believed that the tapes contradicted the officers' testimonieswas prejudicial as it commented on Hilliard's failure to testify. "A criminal defendant has the right to elect not to take the witness stand in his own defense," but this constitutional interest must be balanced by the wide latitude attorneys are given in making their closing arguments. Wright v. State, 958 So.2d 158, 161 (¶ 7) (Miss.2007). While "a direct reference to the defendant's failure to testify is strictly prohibited, all other statements must necessarily be looked at on a case by case basis." Id. (quoting Jimpson v. State, 532 So.2d 985, 991 (Miss.1988)). Prosecutorial comments must be examined in context. Dora v. State, 986 So.2d 917, 923 (¶ 12) (Miss.2008) (quoting United States v. Robinson, 485 U.S. 25, 33, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988)). "[N]ot every comment regarding the lack of any defense is automatically deemed to point toward the defen[dant]'s failure to testify." Id. (quoting Wright, 958 So.2d at 166 (¶ 24)). The State may remark "on the lack of any defense, and such comment will not be construed as a reference to the defendant's failure to testify by innuendo and insinuation." Id. at (¶ 11) (quoting Wright, 958 So.2d at 161 (¶ 7)). The question is whether the prosecutor's statement can be construed as commenting upon the failure of the defendant to take the stand. Id. Here, we find it was not. The State explained it had meant the confidential informant and not Hilliard in its statement. Furthermore, the circuit court sustained the defense's objection and told the jury to disregard the misstatement. Accordingly, this issue is without merit as the circuit court did not abuse its discretion in denying defense counsel's request for a mistrial.

*657 III. Whether the circuit court erred in denying the defense's jury instruction regarding the testimony of the confidential informant.
¶ 13. At trial, the defense submitted Jury Instruction D-6, which states:
Phillip Melton testified that he was involved in a criminal activity and has implicated Robert Mitchell Hilliard. Whenever one person testifies against another for personal gain, such is to be considered and weighed with great care, caution and suspicion. You may give it such weight and credit as you deem it is entitled. You should never convict based on such testimony unless you believe such testimony beyond a reasonable doubt.
The circuit judge denied the jury instruction as an accomplice or co-defendant instruction; he also found that it was cumulative. Although Hilliard argued at trial that Melton was an accomplice since he was involved in a criminal activity, we find the circuit judge correctly rejected this reasoning. Melton was working for the police department, and his arrest two hours prior to this drug transaction was not related to this case wherein he acted as an informant.
¶ 14. Admittedly, an informant's testimony, by its nature, is "looked upon with suspicion and distrust." Williams v. State, 32 So.3d 486, 492 (¶ 21) (Miss.2010) (citing Austin v. State, 784 So.2d 186, 193 (¶ 21) (Miss.2001)). However, this Court has held that "a cautionary instruction is not absolutely required in every case involving the testimony of a cooperating individual, even when there is evidence of potential bias on the part of that witness in favor of the State [-] especially where the testimony of the witness finds corroboration in other evidence." Denson v. State, 858 So.2d 209, 211 (¶ 8) (Miss.Ct.App. 2003). Denson also involved a confidential informant making controlled drug purchases for law enforcement. Further, there was other evidence presented in this case, namely the police officers' testimonies, which corroborated Melton's testimony.
¶ 15. We also agree that the jury instruction was cumulative. The circuit court instructed the jury, in Jury Instruction C-1: "It is your prerogative to determine what weight and what credibility will be assigned the testimony and supporting evidence of each witness in this case." Accordingly, we find no error in the denial of Jury Instruction D-6.
¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF CONVICTION OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF FORTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIRTY YEARS TO SERVE, FIFTEEN YEARS SUSPENDED, FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $10,000 FINE, WITH $5,000 SUSPENDED, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.


(2008)
V SECRET CATALOGUE, INC., et al., Plaintiffs
v.
Victor MOSELEY and Cathy Moseley d/b/a Victor's Little Secret, Defendants.
Civil Action No. 3:98CV-395-S.
United States District Court, W.D. Kentucky, at Louisville.
May 21, 2008.

MEMORANDUM OPINION
CHARLES R. SIMPSON, III, District Judge.
This matter is before the court on cross-motions of the parties for summary judgment. This case has had a long and colorful past which will be briefly described.[1]

I. History of the Case
Victor and Cathy Moseley own and operate a retail store formerly named "Victor's Secret" and later "Victor's Little Secret."[2] The store was self-described in its advertising as selling "Intimate Lingerie," "Romantic Lighting," "Lycra Dresses," "Pagers," and "Adult Novelties/Gifts." It is located in Elizabethtown, Kentucky, a short distance from Louisville. An army colonel who saw the ad for the store opening was offended by what he perceived as an attempt to use Victoria's Secret's trademark to promote "unwholesome, tawdry merchandise." He sent a copy of the ad to the plaintiffs, the affiliated corporations of V Secret Catalogue, Inc., Victoria's Secret Stores, Inc., and Victoria's Secret Catalogue, Inc. (hereinafter collectively "V Secret").
At the time of the Supreme Court decision in 2003, V Secret operated over 750 Victoria's Secret stores, two of which were in Louisville.[3] In 1998, the year this action was filed, V Secret spent over $55 million in advertising the Victoria's Secret brand, described by V Secret as "moderately priced, high quality, attractively designed lingerie sold in a store setting designed to look like a wom[a]n's bedroom." V Secret distributed 400 million copies of the Victoria's Secret catalogue, or which 39,000 were distributed in Elizabethtown. In 1998 their sales exceeded $1.5 billion.
Counsel for V Secret wrote to the Moseleys requesting immediate discontinuance of the use of the name "Victor's Secret" and any variations thereof as the name was likely to cause confusion with the VICTORIA'S SECRET mark and was likely to dilute the distinctiveness of the mark. The Moseleys changed the name of the store to "Victor's Little Secret," a change which was unsatisfactory to V Secret which promptly filed suit.
The action alleged trademark infringement, unfair competition, dilution under the Federal Trademark Dilution Act ("FTDA"), common law trademark infringement and unfair competition. V Secret sought injunctive relief and damages in connection with these claims. After the close of discovery, the parties filed cross-motions for summary judgment. This court granted summary judgment in favor of the Moseleys on all claims except the FTDA Claim.
The court granted summary judgment in favor of V Secret on the FTDA claim, finding that the marks were substantially similar for purposes of the dilution claim and that the Moseleys' marks had a tarnishing effect upon the VICTORIA'S SECRET mark. The court noted that "[included in the inventory sold by the Moseleys, in addition to lingerie, are adult videos as well as sex toys and other `adult novelties.'[4] `Courts have frequently enjoined the "tarnishment" of a mark through association with unsavory goods, persons, or services.' Anheuser-Busch, Inc. v. Balducci Publications, 28 F.3d 769, 777 (8th Cir.1994)." February 9, 2000 Memorandum Opinion, p. 9 (DN 38). The court ordered the Moseleys to refrain from using the "Victor's Secret" and "Victor's Little Secret" marks.
The Moseleys appealed the decision on the FTDA claim to the United States Court of Appeals for the Sixth Circuit. The Sixth Circuit amplified this court's ruling on the claim, applying the newly announced standard for determining dilution in Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208 (2d Cir.1999) and affirmed. In its decision the Court of Appeals discussed two additional issues not addressed by this court. The court considered whether the mark was distinctive, and whether relief could be granted before dilution had actually occurred. The court held that the VICTORIA'S SECRET mark was distinctive and that actual dilution need not have occurred. In light of a split of authority on the question of actual dilution, the Moseleys sought and the United States Supreme Court granted certiorari to consider this issue.
On March 4, 2003, the Supreme Court held that actual dilution was required under the FTDA and reversed the judgment of the Court of Appeals, remanding the case for further proceedings consistent with the opinion. The Supreme Court entered its mandate on April 3, 2003, ordered costs to the Moseleys in the amount of $7,066.85, and sent the matter back to the Sixth Circuit. On April 9, 2003, the Moseleys filed a motion in the Court of Appeals to vacate the injunction. V Secret filed a response on April 25, 2003. The case sat pending thereafter in the Sixth Circuit for over four years without action. On July 26, 2007, the Sixth Circuit remanded the case to this court for further proceedings, stating that "[t]he decision of [the Sixth Circuit] having been reversed by the United States Supreme Court and the case having been remanded for further proceedings, the Court further remands this case to the district court for further proceedings consistent with the Supreme Court's decision in Moseley d/b/a Victor's Little Secret v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003)." July 26, 2007 Order (DN 49). The court scheduled a pretrial conference for August 23, 2007. The mandate was received from the Court of Appeals on September 26, 2007.

II. Enactment of the Trademark Dilution Revision Act
Between the time of the Supreme Court's remand to the Sixth Circuit in 2003 and the Sixth Circuit's remand to this court four years later, the United States Congress enacted the Trademark Dilution Revision Act of 2006 ("TDRA"), Pub.L.No. 109-312, 120 Stat. 1730 (2006)(codified at 15 U.S.C. § 1125(c)), effective October 6, 2006.[5] Of import in this case is that the TDRA eliminated the requirement of actual dilution enunciated by the Supreme Court in the 2003 Moseley decision.[6]
The TDRA provides:
Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.
15 U.S.C. § 1125(c)(1).
In light of this provision, we are faced with an order of the Court of Appeals remanding the case to us to apply law which has been superseded. The Sixth Circuit has held that the law of the case doctrine is inapplicable where a subsequent contrary view of the law by controlling authority occurs. United States v. Moored, 38 F.3d 1419, 1421 (6th cir.1994). We find that the Moseley "actual dilution" standard is thus no longer the law of the case.
The Moseleys contend that the case at bar is distinguishable from the cited cases addressing changes in the law inasmuch as this case had already gone up to the Supreme Court and had been remanded to the Court of Appeals before the new statutory enactment. They urge this court to draw a distinction between cases on their way up the appellate ladder from cases on their way down to the trial court. They cite no authority for drawing such a distinction and we find no logical reason to do so. While the Moseleys complain that they lost the benefit of their success on appeal, the same could be said of a case ascending through the appellate process which is thwarted by superseding legislation. In either case, a change in the law would potentially alter the landscape of the appeal.

III. Retroactivity
Retroactivity is the next issue which the court must address. Pertinent to this determination, the parties stipulated in October, 2007 to V Secret's withdrawal of all claims for monetary relief. The effective date of the new provisions was October 6, 2006. The TDRA does not explicitly state that the Act is to be applied retroactively. The Moseleys therefore urge that dilution claims pending prior to the effective date are governed by the FTDA rather than the new law, as retroactive application is generally disfavored in the law.
The TDRA applies to the dilution claim herein however, as V Secret seeks only prospective injunctive relief. As stated in American Steel Foundries v. Tri-City Central Trades, 257 U.S. 184, 201, 42 S.Ct. 72, 66 L.Ed. 189 (1921), "relief by injunction operates in futuro and the right to it must be determined as of the time of the hearing." See, Louis Vuitton Malletier v. Haute Diggity Dog, LLC, 464 F.Supp.2d 495 (E.D.Va.2006), affm'd, 507 F.3d 252 (4th Cir.2007)(citing, Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); applying TDRA to claim for injunctive relief); Louis Vuitton Malletier v. Dooney & Bourke, 500 F.Supp.2d 276, 282, n. 31 (S.D.N.Y.2007)(applying TDRA to claim for injunctive relief); Starbucks Corporation v. Wolfe's Borough Coffee, Inc., 477 F.3d 765 (2d Cir.2007)(citing, Havana Club Holding, S.A. v. Galleon, S.A., 203 F.3d 116, 129 (2d Cir.2000; applying TDRA to claim for injunctive relief)); Verilux, Inc. v. Hahn, 2007 WL 2318819 (D.Conn. Aug.10, 2007); Dan-Foam AJS v. Brand Named Beds, LLC, 500 F.Supp.2d 296 (S.D.N.Y.2007)(applying TDRA to claim for injunctive relief).
The Sixth Circuit, while not having had the opportunity to address the application of the TDRA to dilution claims pending prior to the effective date of the Act, has approved the principle upon which we base our decision. In BellSouth Telecommunications, Inc. v. Southeast Telephone, Inc., 462 F.3d 650, 661 (6th Cir.2006) the court noted, quoting Landgraf, that a new statute that authorized or affected the propriety of prospective relief did not raise retroactivity concerns. Significantly, the court went on to quote that "[a] statute does not operate `retrospectively' merely because it ... upsets expectations based in prior law." Landgraf, 114 S.Ct. at 1483:
Even uncontroversially prospective statutes may unsettle expectations and impose burdens on past conduct: a new property tax or zoning regulation may upset the reasonable expectations that prompted those affected to acquire property... In other words, the fact that parties engage in conduct on the assumption that the law will allow them to act or to benefit in a certain manner is not sufficient reason to refuse to apply a new law that renders that assumption misplaced.
BellSouth, 462 F.3d at 662, quoting, Landgraf, 114 S.Ct. at 1483. See also, Combs v. Commissioner of Social Security, 459 F.3d 640 (6th Cir.2006)(quoting, Landgraf, "A statute does not operate `retrospectively' merely because it is applied in a case arising from conduct antedating the statute's enactment").

IV. Law of the Case
The next inquiry, then, is whether any of the factual findings remain viable on remand of the dilution claim. There were certain findings of fact and law that were either not appealed or were affirmed on appeal, such as the conclusions that the Victoria's Secret mark was "famous" and "distinctive."[7] The sole issue on which certiorari was granted was the question of whether actual dilution had to be proven under the FTDA or whether a plaintiff need only show a likelihood of dilution of its mark. The findings of the Supreme Court upon which reversal was based were (1) that the Court of Appeals (and this court) incorrectly analyzed the claim under a "likelihood of dilution" rather than an "actual dilution" standard; and (2) that there was no evidence of actual dilution of the Victoria's Secret mark.
As the FTDA has now been superseded by the TDRA, and the new law applies to pending claims, the findings concerning the FTDA and actual dilution fall away. No other findings are rendered infirm by the TDRA. Indeed, the parties each seek to maintain the findings that the VICTORIA'S SECRET mark is "famous" and "distinctive" as the law of the case. The parties cite the same litany of cases in support of this proposition:
"Issues decided at an early stage of litigation, either explicitly or by necessary inference from the disposition, constitute the law of the case." Hanover Ins. Co. v. American Eng'g Co., 105 F.3d 306, 312 (6th Cir.1997)(quoting Coal Resources, Inc. v. Gulf & Western Indus., Inc., 865 F.2d 761, 766 (6th Cir. 1989)). Under the law of the case doctrine, "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case," Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983); United States v. Rayborn, 495 F.3d 328, 337 (6th Cir.2007), and the court is "precluded from reexamining an issue previously decided by the same court, or a higher court in the same case." Bowling v. Pfizer, Inc., 132 F.3d 1147, 1150 (6th Cir.1998). Further, this doctrine precludes a party from challenging a decision from an earlier stage of the litigation that could have been challenged in a prior appeal, but where the party failed to do so. United States v. Adesida, 129 F.3d 846, 850 (6th Cir.1997).
Pl. Cross-Motion for Sum. Judg., p. 20; Def. Response to Cross-Motion, p. 7.

V. Finding of "No Evidence of Dilution"
Before proceeding further, we address an argument raised by the Moseleys. They note that this court and the Court of Appeals both found that there was a likelihood of dilution of the VICTORIA'S SECRET mark. They contend that the Supreme Court's reversal was premised on a finding that there was a complete absence of evidence of dilution. The Moseleys urge that this court is bound by the Supreme Court's finding of "no evidence of dilution," and therefore V Secret cannot succeed on its claim.
The Moseleys read out of context the finding concerning the evidence adduced on summary judgment. The Supreme Court's entire analysis was premised on the finding that a showing of actual dilution was required. The court first noted that "at least where the marks at issue are not identical, the mere fact that consumers mentally associate the junior user's mark with a famous mark is not sufficient to establish actionable dilution." Moseley, 123 S.Ct. at 1124. The court then went on to state:
The record in this case establishes that an army officer who saw the advertisement of the opening of a store named "Victor's Secret" did make the mental association with "Victoria's Secret," but it also shows that he did not therefore form any different impression of the store that his wife and daughter had patronized. There is a complete absence of any lessening of the capacity of the VICTORIA'S SECRET mark to identify and distinguish goods or services sold in Victoria's Secret stores or advertised in its catalogs. The officer was offended by the ad, but it did not change his conception of Victoria's Secret. His offense was directed entirely at petitioners, not at respondents ... The evidence in the present record is not sufficient to support the summary judgment on the dilution count.
Moseley, 123 S.Ct. at 1125. The Supreme Court looked for evidence of actual dilution, considering the anecdotal and expert evidence, and found none. The court did not address the finding by the Court of Appeals of a likelihood of dilution wherein that court stated:
[W]e must ask whether a consumer would link a store called "Victor's Little Secret" that sold women's lingerie with the more famous Victoria's Secret. We have little doubt that the average lingerie consumer would make just such an association. Assuming that the district court was correct in finding that the sophistication of lingerie consumers and the differences in the quality of the products marketed by the two stores would prevent actual confusion, this is a case that highlights the distinction between an infringement and a dilution claim. While no consumer is likely to go to the Moseleys' store expecting to find Victoria's Secret's famed Miracle Bra, consumers who hear the name "Victor's Little Secret" are likely automatically to think of the more famous store and link it to the Moseleys' adult-toy, gag gift, and lingerie shop. This, then, is a classic instance of dilution by tarnishing (associating the Victoria's Secret name with sex toys and lewd coffee mugs) and by blurring (linking the chain with a single, unauthorized establishment). Given this conclusion, it follows that Victoria's Secret would prevail in a dilution analysis, even without an exhaustive consideration of all ten of the Nabisco factors.
V Secret Catalogue, Inc. v. Moseley, 259 F.3d 464, 477 (6th Cir.2001). However, the findings from both courts under the FTDA are so much flotsam and jetsam, having been jettisoned from the ship of the FTDA now sunk in the sea of new dilution law. Summary judgment was reversed. On remand, we have a dilution claim under the TDRA which must be analyzed without regard to the former findings.

VI. Analytical Framework
V Secret urges the court to repackage its former findings and/or those of the Court of Appeals, noting that "[w]ith the exception of the change that now predicates liability of dilution, the elements are nearly identical to those applied under the FTDA." Pl. Cross-Motion for Sum. Judg., p. 19 (emphasis added). V Secret also cites Levi Strauss & Co. v. Fox Hollow Apparel Group, LLC, 2007 WL 1140648 (N.D.Cal. April 17, 2007) for the proposition that "[t]he [TDRA] revision changes the law to the pre-Moseley standard," a case which then went on to apply an analysis set forth in a 1998 case. V Secret then cites to a number of findings by this court and the Court of Appeals which it thus contends constitute the law of the case and should be restated as findings herein.
We reject the suggestion that since the elements under the TDRA are nearly identical to those of the FTDA, we should render the same findings as on the first summary judgment. There can be no application of the law of the case doctrine to factual findings rendered in accordance with a similar, but not identical, statute. Inasmuch as we are faced with a claim for prospective injunctive relief, we must evaluate V Secret's entitlement to relief under the new statute as the matter is presented to us today. See, Haute Diggity Dog, LLC, 464 F.Supp.2d at 504 ("relief by injunction operates in futuro and the right to it must be determined as of the time of the hearing," quoting, American Steel Foundries, supra.). We will therefore apply a rigorous analysis from the ground up, applying the standard for dilution as it is set forth in the TDRA. While the outcome may be the same, we must employ the methodology of the applicable statute.
Additionally, we note herein that the unusual procedural posture of the case; that is, the fact that we are considering whether V Secret is entitled to prospective injunctive relief for use of marks which ceased eight years ago. This is because the law changed while there was already an injunction in place prohibiting the use of the marks. We find, however, that a case or controversy exists with respect to V Secret's entitlement to injunctive relief inasmuch as the Moseleys seek a lifting of this injunction. No doubt, had remand to this court occurred prior to the enactment of the TDRA and the injunction lifted, had the Moseleys again used the "Victor's Secret" or "Victor's Little Secret" marks, V Secret would have been free to again seek injunctive relief under the new dilution statute. As the Moseleys wish to no longer be bound by the present injunction's prohibition, we must consider the propriety of injunctive relief going forward, under the new standard.

VII. The TDRA
The TDRA provides, in pertinent part:
Subject to the principles of equity, the owner of a famous mark that is distinctive, inherently or through acquired distinctiveness, shall be entitled to an injunction against another person who, at any time after the owner's mark has become famous, commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, or of actual economic injury.
... For purposes of paragraph (1), "dilution by blurring" is association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. In determining whether a mark or trade name is likely to cause dilution by blurring, the court may consider all relevant factors, including the following:
(I) The degree of similarity between the mark or trade name and the famous mark.
(ii) The degree of inherent or acquired distinctiveness of the famous mark.
(iii) The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark.
(iv) The degree of recognition of the famous mark.
(v) Whether the user of the mark or trade name intended to create an association with the famous mark.
(vi) Any actual association between the mark or trade name and the famous mark.
... For purposes of paragraph (1), "dilution by tarnishment" is association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark.
15 U.S.C. § 1125(c).[8]
In order to establish entitlement to injunctive relief, V Secret must show that (1) its mark is famous; (2) its mark is distinctive; (3) the Moseleys began using the mark after V Secret's mark became famous; and (4) the Moseleys' use of their mark is likely to cause dilution of V Secret's mark by blurring or by tarnishment of the mark.

VIII. Summary Judgment
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adkkes v. S.H. Kress & Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir.1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue; might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the nonmoving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the nonmoving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bonn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir.1962). We find that there is no genuine issue of material fact to preclude summary judgment, and the issue of dilution can be decided on the present record.
The Moseleys have quoted Fed.R.Civ.P. 56(f) in their response to V Secret's motion for summary judgment. They have not, however, filed a Rule 56(f) affidavit, nor have they requested additional time for discovery. Rather they object wholesale to the affidavits filed by V Secret on the ground that on remand, the court's review should be limited to the closed record. They also urge that the court's analysis should only address dilution by tarnishment as that was the extent of this court's original ruling.
The summary judgment has been reversed and the court has determined that a new statute for obtaining prospective injunctive relief must be applied. As the analysis for likelihood of dilution under the TDRA contemplates both dilution by blurring and dilution by tarnishment, our assessment will address both theories. Further, as the court is required to determine V Secret's present entitlement to injunctive relief, it is appropriate for this court to consider updated evidence. As the Moseleys have not sought additional time for discovery under Rule 56(f), the court will consider the information. We will do so with due regard for the Moseleys' criticisms of the V Secret affidavits, as set out in their responsive brief.

IX. Application of the TDRA
1. Fame
In the case of Dan-Foam, supra., the court held that the requirements for a "famous" mark "remain[] unchanged by the TDRA's reconfiguration of the fame factor." 500 F.Supp.2d at 307, n. 90. The TDRA states that in determining whether a mark possesses the requisite degree of recognition to be considered famous, the court may consider (1) the duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties; (2) the amount, volume, and geographic extent of sales of good or services offered under the mark; (3) the extent of actual recognition of the mark; and (4) whether the mark was registered. 15 U.S.C. § 1125(c)(2)(A).
Without doubt, the VICTORIA'S SCRET mark is valuable. The Moseleys have not challenged the conclusion that the VICTORIA'S SECRET mark qualifies as a famous mark.
We note that the affidavit of Scott A. Kriss, Vice President of Victoria's Secret Stores Brand Management, Inc., indicates that today, over 1, 000 Victoria's Secret and Victoria's Secret Beauty retail stores operate throughout the United States. Victoria's Secret continues to sell women's lingerie, undergarments, nightwear, robes, caftans, kimonos, slippers, sachets, lingerie bags, hanging bags, candles, soaps, cosmetic brushes, atomizers, bath products, and fragrances. Since December 1998, V Secret has advertised, offered for sale, and sold Victoria's Secret goods on its internet website located at www.victoriassecret.com and it ships its goods around the world. In an April 2007 article in Women's Wear Daily, it was reported that Victoria's Secret ranked in the top ten women's apparel stores in a Scarsborough Research survey. In a September 2007 article in Woman's Wear Daily, it was reported that Victoria's Secret ranked second by Nielsen/NetRatings in online apparel and accessories purchases among retailers. V Secret reports that in fiscal year 2006, Victoria's Secret retail store, catalog, and website sales collectively exceeded $4.9 billion. V Secret continues to operate retail stores in Louisville, Kentucky at the Oxmoor Center, the Mall St. Matthews, the Jefferson Mall, and The Summit at Louisville. These locations are approximately sixty miles from the Moseleys' establishment. In 2006, over 280 million issues of the Victoria's Secret catalog were distributed in over 200 countries. V Secret spent approximately $454 million in advertising in 2006.

B. Distinctiveness
The TDRA requires but does not define "distinctiveness." The Act defines dilution by blurring as an association arising from the similarity between a mark and a famous mark which impairs the distinctiveness of the famous mark. "There can be no dilution of a mark's distinctive quality unless the mark is distinctive." Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 208, 216 (2d Cir.1999).
The Moseleys do not challenge the conclusion that the VICTORIA'S SECRET mark is distinctive. This factor is discussed in greater depth in the analysis of the likelihood of blurring of the distinctiveness of the VICTORIA'S SECRET mark.

C. Use
There appears to be no question concerning the timing of the Moseleys' use of the "Victor's Secret" and "Victor's Little Secret" marks. Again, the Moseleys do not dispute that they began using their marks well after V Secret's mark became famous.
The VICTORIA'S SECRET mark has been registered since 1981. The Moseleys did not open their store until 1998. As the declaration of Kriss evidences, by 1998 V Secret had over 750 retail stores and revenues exceeding $2 billion, the combined retail sales from the Kentucky retail locations alone exceeded $4 million, and over 400 million catalogs were distributed annually. Thus Victoria's Secret's fame was clearly established prior to the Moseleys' use of their marks.

D. Likelihood of Dilution
The TDRA establishes that dilution may be shown through evidence of either dilution by blurring or dilution by tarnishment.

1. Dilution by Blurring
The TDRA defines "dilution by blurring" as an association arising from the similarity between a mark and a famous mark that impairs the distinctiveness of the famous mark. 15 U.S.C. § 1125(a)(2)(B). The court has already found the VICTORIA'S SECRET mark to be distinctive. "Dilution by blurring occurs when consumers mistakenly associate a famous mark with goods and services of a junior mark, thereby diluting the power of the senior mark to identify and distinguish associated goods and services." Ringling Bros.Barnum & Bailey Combined Shows, Inc. v. Utah Division of Travel Dev., 955 F.Supp. 605, 615 (E.D.Va. 1997), (citing, Mead Data Cent, Inc. v. Toyota Motor Sales U.S.A., Inc., 875 F.2d 1026, 1031 (2d Cir.1989)). The TDRA recites five particular factors as relevant in determining the likelihood of dilution by blurring. These factors will be addressed seriatim.

a. The degree of similarity between the marks
The marks in issue must be "identical" or "nearly identical" or "substantially similar." While the TDRA does not require that the marks be "identical" or "nearly identical," it does not appear that the Act eliminated this requirement previously established in the law. Nike, Inc. v. Nikepal International, Inc., 2007 WL 2782030, *6 (E.D.Cal.2007). The court previously addressed this factor, and the Court of Appeals approved the analysis. We readopt the finding here.
Significantly, the Moseleys originally named their store "Victor's Secret." This name is quite similar to V Secret's mark, "Victoria's Secret." The Moseleys subsequently changed the name to "Victor's Little Secret," but an examination of the signage[9] and advertising reveals that the alteration was very minor. The word "Little" is substantially smaller than the words "Victor's" and "Secret," so much as to make it an afterthought in the advertising. There are only two letters' difference between "Victor's Secret" and "Victoria's Secret." We find the two marks to be substantially similar for purposes of V Secret's dilution claim.

b. Distinctiveness of the Famous Mark
The Court of Appeals explained the significance of the "distinctiveness" analysis in its decision affirming the summary judgment of this court, but applying a modified test for dilution set out in Nabisco, Inc., supra. "Distinctiveness" is a factor under the TDRA. This element is satisfied when the famous mark is distinctive either inherently or through acquired distinctiveness. 15 U.S.C. § 1125(c)(1). The "distinctiveness" element remains unchanged under the new statute.
The analysis by the Court of Appeals remains sound and stands unchallenged on summary judgment. Therefore this court will readopt the findings therein:
... [`T]he Kellogg/Nabisco test requires a plaintiff to prove that its mark is not only famous, but also distinctive. Although in Kellogg we did not conduct a full dilution analysis, the Second Circuit provided an extended discussion of distinctiveness in the Nabisco decision, as follows:
Distinctiveness in a mark is a characteristic quite different from fame. Distinctiveness is a crucial trademark concept, which places marks on a ladder reflecting their inherent strength or weakness. The degree of distinctiveness of a mark governs in part the breadth of the protection it can command. At the low end are generic wordswords that name the species or object to which the mark applies. These are totally without distinctiveness and are ineligible for protection as marks because to give them protection would be to deprive competitors the right to refer to their products by name. .. Thus, no one can claim the exclusive right to use the mark "CAR" for a car. One rung up the ladder are "descriptive" marksthose that describe the product or its attributes or claims. These also have little distinctiveness and accordingly are ineligible for protection unless they have acquired "secondary meaning"that is, unless the consuming public has come to associate the mark with the products or services of its user ... [T]he next higher rung belongs to "suggestive" marks; these fall in an in-between category .. . They do not name or describe the product for which they are used, but they suggest the qualities or claims of that product. They are more distinctive than descriptive marks, and thus are accorded trademark rights without need to demonstrate that consumers have come to associate them with the user of the mark ... Nonetheless, because they seek to suggest qualities of the product, they possess a low level of distinctiveness. The [sic] are given less protection than is reserved for more distinctive marksthose that are "arbitrary" or "fanciful."... A mark is arbitrary or fanciful if there is no logical relationship whatsoever between the mark and the product on which it is used. However, even within the category of arbitrary or fanciful marks, there is still a substantial range of distinctiveness. Some marks may qualify as arbitrary because they have no logical relationship to the product, but nonetheless have a low level of distinctiveness because they are common. The most distinctive are marks that are entirely the product of the imagination and evoke no association with human experience that relate intrinsically to the product ... The strongest protection of the trademark laws is reserved for these most highly distinctive marks. Nabisco, 191 F.3d at 215-16 (citations omitted).
... The requirement of distinctiveness is furthermore an important limitation. A mark that, notwithstanding its fame, has no distinctiveness is lacking the very attribute that the antidilution statute seeks to protect.
... [T]he degree of distinctiveness of the senior mark has a considerable bearing on the question whether a junior use will have a diluting effect. Nabisco, 191 F.3d at 217.
V Secret Catalogue, Inc., 259 F.3d at 469-470.
Nothing in the new version of the antidilution statute has changed with regard to this element. After this discussion of the principles underlying the characteristic of distinctiveness, the Sixth Circuit held that
In this case, for example, although the word "secret" may provoke some intrinsic association with prurient interests, it is not automatically linked in the ordinary human experience with lingerie. "Secret" is not particularly descriptive of bras and hosiery. Nor is there anything about the combination of the possessive "Victoria's" and "secret" that automatically conjures thoughts of women's underwearexcept, of course, in the context of plaintiffs line of products. Hence, we conclude that the "Victoria's Secret" mark ranks with those that are "arbitrary and fanciful" and therefore deserving of a high level of trademark protection.
V Secret Catalogue, Inc. v. Moseley, 259 F.3d 464, 470 (6th Cir.2001), rev'd, 537 U.S. 418, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003).

c. Substantially Exclusive Use of the Mark
As noted in Nikepal, supra, "The law does not require that use of a famous mark be absolutely exclusive, but merely `substantially exclusive.'" Nikepal, 2007 WL 2782030 at *7, citing, L.D. Kichler Co. v. Davoil Inc., 192 F.3d 1349, 1352 (Fed. Cir.1999). V Secret asserts that it is engaged in substantially exclusive use of the VICTORIA'S SECRET mark. In support of this contention, Vice President Kriss avers that V Secret actively and aggressively polices its mark against unauthorized and dilutive uses by others. It pursues unauthorized uses through cease and desist letters, trademark oppositions, and litigation. Kriss Decl, ¶ 27. The Moseleys have not disputed this assertion. We therefore find the requisite substantially exclusive use of the mark.

d. Recognition of the Mark
The court finds that there can be little dispute over the degree of consumer recognition of the VICTORIA'S SECRET mark. The commercial success of the retail stores, catalog and internet venues offers a measure of the recognition of the brand. As attested in the Kriss declaration, V Secret prominently displays its mark in a variety of ways. All V Secret garments bear "Victoria's Secret" hang tags and garment labels. The stores prominently display the VICTORIA'S SCRET mark at the entrance to their storefronts. All merchandise is placed in a shopping bag or wrapped in tissue paper and placed in a gift box, both of which bear the VICTORIA'S SECRET mark. Victoria's Secret is known worldwide, through the broadcast of the Victoria's Secret Fashion Show, catalog distribution, and the internet shopping venue. V Secret has also advertised and continues to advertises its mark in nationally circulated magazines such as The New Yorker, Glamour, Vogue, and Harper's Bazaar. In recent years its merchandise has been featured in various internationally circulated magazines such as Allure, Cosmopolitan, Elle, Family Circle, and Glamour, to name a few. Its merchandise has also been featured on various national television programs such as CBS Early Show, Good Morning America, The Today Show, Entertainment Tonight, and Extra. Kriss Decl., ¶¶ 12-14, 16, 22, 25-27. The court finds that the VICTORIA'S SECRET mark has a high level of consumer recognition.

e. Intent to Associate with Famous Mark
This court considered the evidence offered with respect to the Moseleys' intent in selecting "Victor's Secret" to create an association in the mind of the consumer with the VICTORIA'S SECRET mark. The court concluded that the explanation offered by the Moseleys was not credible, and determined that they indeed intended to foster such an association. The court held:
The Moseleys assert that their selection of "Victor's Secret" for the name of their store was a complete coincidence. They claim that they had never seen a Victoria's Secret catalogue or a Victoria's Secret advertisement prior to opening their store. Their explanation for the selection of the name "Victor's Secret" is that Victor Moseley wanted to keep the opening of his store quiet while working for a previous employerthus, it was "Victor's Secret."
The notable similarity between the two marks alone is enough to call into question Defendants' explanation, but Victoria's Secret also submits further evidence to rebut the Moseleys' claims. Mr. Moseley testified in his deposition that he was unemployed prior to opening his store. This not only tends to refute his explanation for the name "Victor's Secret," but seriously damages his credibility.
V Secret Catalogue, Inc., 2000 WL 370525 at *4.
Neither the Sixth Circuit nor the Supreme Court addressed this finding. Upon revisiting the issue, the court sees no reason to deviate from this earlier analysis of the facts. The Moseleys' "Victor's Secret" name appears in all capital letters in an almost identical font to "Victoria's Secret," and is employed as the name for a store also selling lingerie.[10] This is too remarkable a coincidence for this court to accept the assertion that it was unknowing. We therefore readopt our earlier analysis and conclude that Moseleys intended to create an association with the VICTRIA'S SECRET mark.

f. Actual Association
This element encompasses more than one aspect of the blurring calculus. The Supreme Court found under the standard of "actual dilution" that there was evidence of an actual association of the "Victor's Secret" mark with the VICTORIA'S SECRET mark, through the testimony of the army colonel who reported the advertisement he had received to V Secret.
The Supreme Court noted, however, that blurring is not a necessary consequence of a mental association in the mind of the consumer between an accused mark and a famous mark. The court found that there was a "complete absence of evidence of any lessening of the capacity of the VICTORIA'S SECRET mark to identify and distinguish goods or services sold in Victoria's Secret stores or advertised in its catalogs." Moseley, 123 S.Ct. at 1125. The court noted that V Secret's expert did not address the impact of the Moseleys' use of their mark on the strength of the VICTORIA'S SECRET mark. Thus the court found that there was actual association between the marks, but no evidence of actual dilution of the famous mark. However, we are analyzing the evidence under the "likelihood of dilution" standard enunciated in the TDRA, and thus are unconcerned with the second aspect of the Supreme Court's analysis.
The Supreme Court noted that the army colonel who saw the advertisement for Victor's Secret's grand opening did readily make the mental association with "Victoria's Secret," but he was not actually misled as to the ownership of the Moseleys' store, nor was his esteem of V Secret's business diminished. Rather, he was offended that the Moseleys would attempt to use a variant of the VICTORIA'S SECRET mark in such a fashion. Thus, we answer the question as to actual association as did the Supreme Court and conclude that there was proof, albeit one testimonial, of actual association.
The evidence here is quantitatively less impressive than the evidence in the Nikepal case in which there was a survey performed showing that over 87% of the people in Nikepal's customer pool associated "Nikepal" with "Nike." However, in light of the fact that Nikepal was not attempting to sell athletic shoes or gear, but rather sold services and products to analytical, environmental, and scientific laboratories. A survey of that particular customer base was, no doubt, necessary in or to establish actual association. By contrast, here we have a lingerie and adult products store calling itself "Victor's Secret," and an individual consumer who saw the accused mark and was so offended by the association to "Victoria's Secret" that he contacted the company to report the offending use. We find the evidence of actual association here no less compelling than in Nikepal.

g. Conclusion as to Blurring
"Blurring" is defined as an association arising from the similarity between a mark and a famous mark that impairs the distinctiveness of the famous mark. As already established, the VICTORIA'S SECRET mark is quite famous and strongly associated with V Secret's products. The evidence, which is essentially limited to the experience of the offended army colonel, militates against a finding that the distinctiveness of the VICTORIA'S SECRET mark would likely be impaired by the use of the "Victor's Secret" or "Victor's Little Secret" marks. The evidence in the case established that a consumer, the army colonel, readily associated the Moseleys' mark with the VICTORIA'S SECRET mark, but did not link the store to the Victoria's Secret brand. There was no question in his mind that the Moseleys' offerings of intimate lingerie, sex toys, and adult videos were not V Secret merchandise. The choice of name and presentation by the Moseleys being just slightly different from the VICTORIA'S SECRET mark, conjured the association with the famous mark, but fell short of blurring its distinctiveness in this instance.
While it is possible that a blurring of that distinctiveness could occur in the minds of some consumers, we deal here with likelihood of blurring. We must address the evidence before us which militates against a finding of likelihood. The offended colonel wrote to V Secret not to say "stop selling sex toys," but rather to alert them that their mark was being associated with an establishment selling such items in derogation of their name. Thus we have evidence not of blurring, but of tarnishment.
So while we have found that the blurring factors, including intent on the part of the Moseleys to create the association with V Secret's mark, favor V Secret, the record evidence establishes that the distinctiveness of the VICTORIA'S SECRET mark was not blurred, at least in the instance of one consumer confronted with the use of the accused mark.
V Secret has not argued that satisfaction of the statutory factors trumps evidence of a lack of blurring of the famous mark's distinctiveness. We believe that such an argument, if made, would be unsuccessful inasmuch as the statute states that the court "may consider all relevant factors," including the ones delineated. The weight to be given any of the considerations listed in the statute is unclear. However, the court notes that V Secret could have met the evidence militating against a finding of blurring, but chose not to do so. The Supreme Court clearly suggested an evidentiary deficiency, albeit applying an "actual dilution" standard, but V Secret did not seek to further develop evidence on remand.
V Secret contends that the Court of Appeals found dilution by blurring, and that finding should be adopted herein. However, we conclude that the lack of any factual analysis on the point by the appellate court is problematic and would lead to an erroneous result. The Court of Appeals stated that
While no consumer is likely to go to the Moseleys' store expecting to find Victoria's Secret's famed Miracle Bra, consumers who hear the name "Victor's Little Secret" are likely automatically to think of the more famous store and link it to the Moseleys' adult-toy, gag gift, and lingerie shop. This, then, is a classic instance of dilution by tarnishing (associating the Victoria's Secret name with sex toys and lewd coffee mugs) and by blurring (linking the chain with a single, unauthorized establishment).
V Secret Catalogue, 259 F.3d at 477. The Supreme Court stated, however, that
... at least where the marks at issue are not identical, the mere fact that consumers mentally associate the junior user's mark with a famous mark is not sufficient to establish actionable dilution. As the facts of that case demonstrate, such mental association will not necessarily reduce the capacity of the famous mark to identify the goods of its owner, the statutory requirement for dilution under the FTDA. For even though Utah drivers may be reminded of the circus when they see a license plate referring to the "greatest snow on earth," it by no means follows that they will associate "the greatest show on earth" with skiing or snow sports, or associate it less strongly or exclusively with the circus. "Blurring" is not a necessary consequence of mental association. (Nor, for that matter, is "tarnishing.")
Moseley, 123 S.Ct. at 1125.
As we are considering the matter afresh under the new statute's "likelihood of dilution standard," we conclude that the better course includes our thorough analysis of the facts, in the application of the new statute.
We conclude for the foregoing reasons that there has been no showing of a likelihood of dilution by blurring.

2. Dilution by Tarnishment
The TDRA states that "dilution by tarnishment" is an "association arising from the similarity between a mark ... and a famous mark that harms the reputation of the famous mark." 15 U.S.C. § 1125(c)(2)(C).
Dilution by tarnishment "generally arises when the plaintiffs trademark is linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context likely to evoke unflattering thoughts about the owner's product." Diane Von Furstenberg Studio v. Snyder, 2007 WL 2688184 at *4 (E.D.Va. Sept.10, 2007), quoting, Deere & Co. v. MTD Prods., 41 F.3d 39, 43 (2d Cir.1994). As explained in Deere & Co., "[i]n such situations, the trademark's reputation and commercial value might be diminished because the public will associate the lack of quality, or lack of prestige in the defendant's goods with the plaintiffs unrelated goods, or because the defendant's use reduces the trademark's reputation and standing in the eyes of consumers as a wholesome identifier of the owner's products and services." 41 F.3d at 43.
The evidence in this case supports a finding of a likelihood of dilution by tarnishment. The army colonel's offended reaction to the use of "Victor's Secret," what he clearly believed to be a bastardization of the VICTORIA'S SECRET mark, for the promotion of "unwholesome, tawdry merchandise," suggests the likelihood that the reputation and standing of the VICTORIA'S SECRET mark would be tarnished. In the words of the Deere & Co. case, the reputation of the famous mark would be "reduced" in the eyes of consumers as "a wholesome identifier" of the Victoria's Secret brand Id. V Secret has stated that it scrupulously avoids sexually explicit goods while cultivating a "sexy and playful" image. The line between "sexy and playful" and sexually explicit in the world of women's lingerie purveyors is one which V Secret seeks to maintain in order to preserve its image as a "well-respected retailer of high-quality women's lingerie." Kriss Deck, ¶ 98. The use of the remarkably similar "Victor's Secret" or "Victor's Little Secret" in connection with the sale of intimate lingerie along with sex toys and adult videos tarnishes the reputation of the VICTORIA'S SECRET mark. Thus we find a likelihood of dilution of the mark, entitling V Secret to injunctive relief.

Conclusion
The parties agree that the record is complete and the court may decide the matter herein on the merits. Having found the TDRA to be applicable to the remanded dilution claim, and having found a likelihood of dilution the VICTORIA'S SECRET mark on an essentially undisputed factual record, summary judgment will be granted in favor of V Secret, summary judgment denied to the Moseleys, and a permanent injunction will be entered by separate order.
IT IS SO ORDERED.
NOTES
[1]  A portion of this description is taken from the opinion of the United States Supreme Court in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418, 123 S.Ct. 1115, 1119-1122, 155 L.Ed.2d 1 (2003).
[2]  The store has been operating under the name "Cathy's Little Secret" since February of 2000 when this court entered an order enjoining the defendants from using the marks "Victor's Secret" or "Victor's Little Secret" in connection with their business.
[3]  Ten years has elapsed since proof was taken in this case. The figures have since changed. We recite the facts as they existed at the time this court issued its initial ruling. Recent statistical evidence has been offered by V Secret. It is addressed later in this opinion.
[4]  It appears that the inventory presently sold by Cathy's Little Secret is essentially the same as it was ten years ago.
[5]  V Secret theorized that the Court of Appeals might have held the case for this extended period of time in order to afford Congress the opportunity to supersede the FTDA with this new legislation. There is no evidence in the record to support this suggestion, nor does it matter to this court. The court must address the issues presented at the time of remand. The court will not engage in evaluation of "what if" scenarios such as that posed by the Moseleys; that is, what the necessary outcome would have been had the Court of Appeals promptly remanded the case to this court.
[6]  In fact, the Moseley case has been said to have been the catalyst for the enactment of the TDRA: "Congress amended the [Federal Trademark Dilution] Act principally to overrule Moseley and to require that only a likelihood of dilution need be proved. See, 15 U.S.C. § 1125(c)(1)(West Supp.2007)." Louis Vuitton Malletier v. Haute Diggity Dog, LLC, 507 F.3d 252, 264, n. 2 (4th Cir.2007)(emphasis in original).
[7]  This court did not render a finding addressing the distinctiveness of the mark.
[8]  We reject out of hand the argument of the Moseleys that on remand, the court's analysis must be limited to the issue of tarnishment, as that was the basis for this court's grant of summary judgment. The TDRA specifically provides for proof of dilution by blurring and tarnishment. As we are addressing the claim afresh under the new statutory provision, our analysis need not be limited to the tarnishment of V Secret's mark.
[9]  which was utilized until this court enjoined the use in 2000.
[10]  We are not swayed by the assertion that lingerie sales comprise a small percentage of the Moseleys' business. The lingerie figures prominently in the Moseleys' advertising and store window displays.


898 F.2d 150
Ramseyv.Chevron*
NO. 89-3564
United States Court of Appeals,Fifth Circuit.
MAR 01, 1990
Appeal From:  E.D.La., 717 F.Supp. 1178

1
REVERSED IN PART.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


          Supreme Court of Florida
                                   ____________

                                   No. SC11-265
                                   ____________

                              THE FLORIDA BAR,
                                 Complainant,

                                         vs.

                         LANELL WILLIAMS-YULEE,
                                Respondent.

                                   [May 1, 2014]

PER CURIAM.

      We have for review a referee’s report recommending that the Respondent,

Lanell Williams-Yulee, be found guilty of professional misconduct. The referee

recommended that the Respondent receive a public reprimand as a sanction. We

have jurisdiction. See art. V, § 15, Fla. Const.

      For the reasons explained below, we approve the referee’s findings of fact

and recommendation that the Respondent be found guilty of violating Rule

Regulating the Florida Bar 4-8.2(b) (Judicial and Legal Officials, Candidates for

Judicial Office; Code of Judicial Conduct Applies) for personally soliciting

campaign contributions in violation of Canon 7C(1) of the Florida Code of Judicial
Conduct. We therefore reject the Respondent’s constitutional challenge to the ban

imposed by Canon 7C(1) on a judicial candidate’s personal solicitation of

campaign contributions, and hold that the Canon is constitutional because it

promotes the State’s compelling interests in preserving the integrity of the

judiciary and maintaining the public’s confidence in an impartial judiciary, and

that it is narrowly tailored to effectuate those interests.

      We disapprove the referee’s findings of fact and recommendation of guilt

regarding the Respondent’s alleged violation of rules 3-4.3 (Misconduct and minor

misconduct) and 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules

of Professional Conduct, knowingly assist or induce another to do so, or do so

through the acts of another). We approve the referee’s recommended sanction of a

public reprimand.

                                        FACTS

      The Florida Bar filed a complaint against the Respondent, alleging that she

engaged in misconduct in violation of the Rules Regulating the Florida Bar. A

referee was appointed, but the proceedings were stayed pending this Court’s

disposition of Inquiry Concerning a Judge, N. James Turner, No. SC09-1182,

which involved the same First Amendment constitutional challenge to Canon

7C(1) that the Respondent raised before the referee and has now raised on review.

                                          -2-
Ultimately, however, this Court declined to decide the First Amendment issue in

that case. See In re Turner, 76 So. 3d 898, 901 (Fla. 2011).

      Following this Court’s resolution of Turner, the stay was lifted and the

referee heard the Respondent’s motion challenging the sufficiency of the complaint

on the dual bases of delay and the constitutionality of Canon 7C(1). The referee

denied the Respondent’s motion. After holding hearings, the referee submitted a

report to the Court, making the following factual findings and recommendations.

      In September 2009, the Respondent became a candidate for County Court

Judge, Group 10, Hillsborough County, Florida. On September 4, 2009, the

Respondent signed a campaign fundraising letter, in which she personally solicited

campaign contributions. The Respondent admitted to having reviewed and

approved the letter.

      At the time she signed the letter, no other candidate for the judgeship had

been announced. In addition to soliciting campaign contributions, the letter stated

that the Respondent served the “community as Public Defender,” though her

correct title was “assistant public defender.” The letter also included a link to the

Respondent’s website, which correctly referenced her work history as an assistant

public defender.

      The referee found “that the term public defender is widely used to refer to

the specific attorney assigned to a case and not necessarily the elected public

                                         -3-
defender.” A newspaper article published on November 3, 2009, included the

Respondent’s representation to a reporter that there was no incumbent in the

judicial race for which the Respondent was running.

      Before the referee, The Florida Bar alleged that the Respondent’s campaign

manager incorrectly posted on the Respondent’s campaign website that the

Respondent was “judge elect,” even though the Respondent had never been a judge

and had not been elected. The referee rejected the Bar’s argument, finding “that

the Respondent took reasonable action in directing the campaign manager to obtain

her approval prior to making any changes to her website.” The referee also found

that the Respondent “did not order, have knowledge of, or ratify the campaign

manager’s actions” regarding the posting of “judge elect.”

      Based upon the foregoing facts, the referee recommended that the

Respondent be found guilty of violating Rules Regulating the Florida Bar 3-4.3

(Misconduct and minor misconduct), 4-8.2(b) (Judicial and Legal Officials,

Candidates for Judicial Office; Code of Judicial Conduct Applies), and 4-8.4(a) (a

lawyer shall not violate or attempt to violate the Rules of Professional Conduct,

knowingly assist or induce another to do so, or do so through the acts of another).

The referee recommended that the Respondent be found not guilty of violating rule

4-5.3(b) (Responsibilities Regarding Nonlawyer Assistants; Supervisory

                                        -4-
Responsibility), which the Bar alleged the Respondent had violated based on the

campaign manager’s inaccurate posting on the website.

      Regarding the solicitation of campaign funds in her letter signed September

4, 2009, the referee rejected the Respondent’s testimony that she understood Canon

7C(1) of the Code of Judicial Conduct would apply only if there were another

candidate in the judicial race. Canon 7C(1) provides in pertinent part as follows:

“A candidate . . . for a judicial office that is filled by public election between

competing candidates shall not personally solicit campaign funds . . . .” In finding

that the Respondent violated Canon 7C(1), the referee stated that “[i]t is clear that

the use of ‘election between competing candidates’ is used to describe the type of

judicial office where the prohibition would apply.”

      In addressing the Respondent’s statement to the newspaper reporter, the

referee found that the Respondent misrepresented the fact that there was no

incumbent in the judicial race for which she was running. Further, the referee

found that the Respondent’s misrepresentation was published in a newspaper

article on November 3, 2009.

      With respect to discipline, the referee considered the Respondent’s personal

history, finding that the Respondent was admitted to The Florida Bar in 1991 and

does not have any prior disciplinary history. Additionally, the referee found no

aggravating factors and found the following mitigating factors: absence of a prior

                                          -5-
disciplinary record; absence of a dishonest or selfish motive; timely good faith

effort to make restitution or to rectify consequences of misconduct; and full and

free disclosure to disciplinary board or cooperative attitude toward proceedings.

The referee consequently recommended that the Respondent receive a public

reprimand and awarded costs to The Florida Bar in the amount of $1,860.30.

                                    ANALYSIS

      The Respondent seeks review of the referee’s factual finding that she made a

misrepresentation to a reporter; the referee’s recommendations of guilt as to rules

3-4.3, 4-8.2(b), and 4-8.4(a); and the referee’s recommended discipline, which

calls for a public reprimand and payment of costs to The Florida Bar.

      This Court’s standard of review for evaluating a referee’s factual findings is

limited, and if a referee’s findings of fact are supported by competent, substantial

evidence in the record, this Court will not reweigh the evidence and substitute its

judgment for that of the referee. See Fla. Bar v. Frederick, 756 So. 2d 79, 86 (Fla.

2000). The Court has repeatedly stated that the referee’s factual findings must be

sufficient under the applicable rules to support the recommendations as to guilt.

See Fla. Bar v. Shoureas, 913 So. 2d 554, 557-58 (Fla. 2005).

                             Violation of Rule 4-8.2(b)

      The Respondent first challenges the referee’s recommendation that she be

found guilty of violating rule 4-8.2(b) (Judicial and Legal Officials, Candidates for

                                        -6-
Judicial Office; Code of Judicial Conduct Applies). With respect to this rule

violation, the Respondent does not challenge the referee’s factual findings.

Instead, the Respondent admits that she signed the letter soliciting campaign funds,

but attempts to justify her misconduct by explaining that she signed the letter while

under the impression that Canon 7C(1) did not apply to her since, at the time she

signed the letter, there was no other candidate in the race.

      The Respondent now understands that the prohibition against solicitation by

a judicial candidate applied to her. Nevertheless, even though the Respondent

admits that Canon 7C(1) applied to her, she asserts that the referee’s

recommendation of guilt is incorrect because Canon 7C(1) is unconstitutional in

that it limits a judicial candidate’s right to engage in free speech by prohibiting a

judicial candidate from directly soliciting campaign contributions.

      Canon 7C(1) provides in pertinent part as follows:

             A candidate . . . for a judicial office that is filled by public
      election between competing candidates shall not personally solicit
      campaign funds, or solicit attorneys for publicly stated support, but
      may establish committees of responsible persons to secure and
      manage the expenditure of funds for the candidate’s campaign and to
      obtain public statements of support for his or her candidacy. Such
      committees are not prohibited from soliciting campaign contributions
      and public support from any person or corporation authorized by law.

On its face, Canon 7C(1) prohibits a judicial candidate from personally soliciting

campaign contributions.

                                         -7-
      This Court recognizes that by prohibiting judicial candidates from personally

soliciting campaign contributions, Canon 7C(1) clearly restricts a judicial

candidate’s speech. Therefore, in order to be constitutional and not in violation of

the First Amendment, Canon 7C(1) must be narrowly tailored to serve a

compelling state interest. See Firestone v. News-Press Publ’g Co., 538 So. 2d 457,

459 (Fla. 1989) (“Restrictions on first amendment rights must be supported by a

compelling, governmental interest and must be narrowly drawn to insure that there

is no more infringement than is necessary.”).

      As this Court has previously stated, Florida has “a compelling state interest

in preserving the integrity of [its] judiciary and maintaining the public’s confidence

in an impartial judiciary.” In re Kinsey, 842 So. 2d 77, 87 (Fla. 2003) (citing In re

Code of Judicial Conduct (Canons 1, 2, & 7A(1)(b)), 603 So. 2d 494, 497 (Fla.

1992)). Florida is certainly not alone in this regard. Other state supreme courts to

address the constitutionality of judicial ethics canons comparable to Canon 7C(1)

have held that similar State interests are compelling. See Simes v. Ark. Judicial

Discipline & Disability Comm’n, 247 S.W.3d 876, 881 (Ark. 2007); In re

Dunleavy, 838 A.2d 338, 351 (Me. 2003); In re Fadeley, 802 P.2d 31, 41 (Or.

1990).

                                        -8-
      Over twenty years ago, the Oregon Supreme Court, in upholding a judicial

ethics canon similar to Florida’s Canon 7C(1), stated that the compelling State

interest served by the solicitation restriction

      is the state’s interest in maintaining, not only the integrity of the
      judiciary, but also the appearance of that integrity. The persons most
      actively interested in judicial races, and the persons who are the most
      consistent contributors to judicial campaigns, are lawyers and
      potential litigants. The impression created when a lawyer or potential
      litigant, who may from time to time come before a particular judge,
      contributes to the campaign of that judge is always unfortunate.
      Although many or most lawyers may act with pure motives, viz., to
      ensure a qualified judiciary and to ensure vigorous public debate, the
      outside observer cannot but think that the lawyer or potential litigant
      either expects to get special treatment from the judge or, at the least,
      hopes to get such treatment. It follows that, if it is at all possible to do
      so, the spectacle of lawyers or potential litigants directly handing over
      money to judicial candidates should be avoided if the public is to have
      faith in the impartiality of its judiciary.

In re Fadeley, 802 P.2d at 41.

      More recently, the Arkansas Supreme Court, in addressing the

constitutionality of a judicial ethics canon comparable to Canon 7C(1), echoed the

concerns articulated by the Supreme Court of Oregon, holding that Arkansas’

solicitation ban served two separate compelling State interests: (1) ensuring

judicial impartiality, and (2) ensuring the public’s trust and confidence in the

integrity of the judicial system by avoiding the appearance of impropriety. See

Simes, 247 S.W.3d at 881-82.

                                          -9-
      As to the first State interest, ensuring judicial impartiality, the Arkansas

Supreme Court stated as follows:

      Certainly the state has a compelling interest in diminishing the
      possibility that judges, once in office, will be pressured to decide
      issues in favor of those who financially supported their campaign.
      Therefore, in addition to impartiality as it goes to bias, we conclude
      that the open-mindedness of judges is a sufficient compelling state
      interest.

Id. at 881.

      With respect to the second compelling State interest, avoiding the

appearance of impropriety, the Arkansas court explained as follows:

             The state certainly has a compelling interest in the public’s trust
      and confidence in the integrity of our judicial system. Allowing a
      judge to personally solicit or accept campaign contributions,
      especially from attorneys who may practice in his or her court, not
      only has the possibility of making a judge feel obligated to favor
      certain parties in a case, it inevitably places the solicited individuals in
      a position to fear retaliation if they fail to financially support that
      candidate. Attorneys ought not feel pressured to support certain
      judicial candidates in order to represent their clients. In addition, the
      public should be protected from fearing that the integrity of the
      judicial system has been compromised, forcing them to search for an
      attorney in part based upon the criteria of which attorneys have made
      the obligatory contributions.

Id. at 882. These decisions illustrate that other state supreme courts that have

addressed the constitutionality of judicial ethics canons similar to Florida’s Canon

7C(1) have reached the same conclusion that this Court reached in In re Kinsey,

842 So. 2d at 87—that protecting the integrity of the judiciary, as well as

                                         - 10 -
maintaining the public’s confidence in an impartial judiciary, represent compelling

State interests capable of withstanding constitutional scrutiny.

      Therefore, in light of this Court’s prior holding that Florida has a compelling

interest in protecting the integrity of the judiciary and maintaining the public’s

confidence in an impartial judiciary—a holding that is bolstered by the broad

acceptance of comparable compelling State interests by other state supreme

courts—we conclude that Canon 7C(1), which furthers these goals, serves

compelling State interests. The constitutionality of Canon 7C(1) thus turns on

whether the Canon is narrowly tailored to serve these compelling State interests.

      The United States Supreme Court has stated that a government regulation is

narrowly tailored “if it targets and eliminates no more than the exact source of the

‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988). The

Respondent contends that Canon 7C(1) fails to satisfy the narrowly tailored

requirement, particularly in the context of a mass mailing letter. We disagree.

      First, the Respondent’s argument ignores that this process includes a

candidate’s direct receipt of funds. Moreover, personal solicitation of campaign

funds, even by mass mailing, raises an appearance of impropriety and calls into

question, in the public’s mind, the judge’s impartiality. Thus, “[t]o protect the

independence of the judiciary, the right of judges to engage in political activity has

                                        - 11 -
been restricted.” In re Code of Judicial Conduct (Canons 1, 2, & 7A(1)(b)), 603

So. 2d at 497.

      Canon 7C(1), which contains provisions similar to Canons 4.1(A)(8) and 4.4

of the American Bar Association Model Code of Judicial Conduct,1 is designed to

       1. Canon 4.1 of the American Bar Association Model Code of Judicial
Conduct states in pertinent part: “[e]xcept as permitted by law, or by Rules 4.2,
4.3, and 4.4, a judge or a judicial candidate shall not: . . . personally solicit or
accept campaign contributions other than through a campaign committee
authorized by Rule 4.4.” A.B.A. Model Code of Judicial Conduct, Canon
4.1(A)(8).
       Further, Canon 4.4, which governs the use of campaign committees, states as
follows:
              (A) A judicial candidate subject to public election may
       establish a campaign committee to manage and conduct a campaign
       for the candidate, subject to the provisions of this Code. The
       candidate is responsible for ensuring that his or her campaign
       committee complies with applicable provisions of this Code and other
       applicable law.
              (B) A judicial candidate subject to public election shall direct
       his or her campaign committee:
              (1) to solicit and accept only such campaign contributions as
       are reasonable, in any event not to exceed, in the aggregate, $[insert
       amount] from any individual or $[insert amount] from any entity or
       organization;
              (2) not to solicit or accept contributions for a candidate’s
       current campaign more than [insert amount of time] before the
       applicable primary election, caucus, or general or retention election,
       nor more than [insert number] days after the last election in which the
       candidate participated; and
              (3) to comply with all applicable statutory requirements for
       disclosure and divestiture of campaign contributions, and to file with
       [name of appropriate regulatory authority] a report stating the name,
       address, occupation, and employer of each person who has made
       campaign contributions to the committee in an aggregate value
       exceeding $[insert amount]. The report must be filed within [insert

                                       - 12 -
insulate judges from directly engaging in fundraising activity by allowing the

establishment of campaign committees, through which judges can raise campaign

funds without direct participation. A majority of states have enacted similar

provisions. 2

      Further, every state supreme court that has examined the constitutionality of

comparable state judicial ethics canons has concluded that these types of

     number] days following an election, or within such other period as is
     provided by law.
A.B.A. Model Code of Judicial Conduct, Canon 4.4.
       2. With respect to judicial races involving either an opposed election or
retention with active opposition, the majority of states require that the solicitation
for judicial campaign funds be conducted through a campaign committee. See,
e.g., Alaska Code of Jud. Conduct, Canon 5C(3); Ariz. Code of Jud. Conduct,
Canon 4, R. 4.1(A)(6); Ark. Code of Jud. Conduct, Canon 4, R. 4.2(B)(1); Colo.
Code of Jud. Conduct, Canon 4, R. 4.3(A); Conn. Code of Jud. Conduct, Canon
5A(4); Idaho Code of Jud. Conduct, Canon 5C(2); Ill. Code of Jud. Conduct,
Canon 7B(2); Ind. Code of Jud. Conduct, Canon 4, R. 4.4(A); Iowa Code of Jud.
Conduct, Canon 4, R. 51:4.4(A); Ky. Code of Jud. Conduct, Canon 5B(2); La.
Code of Jud. Conduct, Canon 7C(2)(b); Me. Code of Jud. Conduct, Canon 5C(3);
Mich. Code of Jud. Conduct, Canon 7B(2)(b); Minn. Code of Jud. Conduct, Canon
4, R. 4.4(A); Miss. Code of Jud. Conduct, Canon 5C(2); Mo. Code of Jud.
Conduct, Canon 4, R. 2-4.2(B); Mont. Code of Jud. Conduct, Canon 4, R. 4.4(A);
Neb. Code of Jud. Conduct, Canon 4, R. 5-304.1(A)(8); N.M. Code of Jud.
Conduct, Canon 4, R. 21-404A; N.Y. Code of Jud. Conduct, Canon 5(A)(5); N.D.
Code of Jud. Conduct, Canon 4, R. 4.6; Ohio Code of Jud. Conduct, Canon 4, R.
4.4(A); Okla. Code of Jud. Conduct, Canon 4, R. 4.4(A); Or. Code of Jud.
Conduct, R. 4-102(D); Pa. Code of Jud. Conduct, Canon 7B(2); S.C. Code of Jud.
Conduct, Canon 5C(2); Tenn. Code of Jud. Conduct, Canon 4, R. 4.4; Utah Code
of Jud. Conduct, Canon 4, R. 4.2(B)(2); Vt. Code of Jud. Conduct, Canon 5C(3);
Wash. Code of Jud. Conduct, Canon 4, R. 4.4; W. Va. Code of Jud. Conduct,
Canon 5C(2); Wis. Code of Jud. Conduct, R. 60.06(4); Wyo. Code of Jud.
Conduct, Canon 4, R. 4.2(B)(4).

                                        - 13 -
provisions are constitutional, as one of a constellation of provisions designed to

ensure that judges engaged in campaign activities are able to maintain their status

as fair and impartial arbiters of the law. See Simes, 247 S.W.3d at 884; In re

Dunleavy, 838 A.2d at 351; In re Fadeley, 802 P.2d at 44. 3 One such state is

Oregon, which, like Florida, requires judicial candidates to establish and raise

money through campaign committees rather than allowing direct solicitation.

      In addressing the constitutionality of Oregon’s judicial canon, the Oregon

Supreme Court reviewed why campaign committees are necessary, explaining as

follows:

             So long as judges are chosen by the electoral process, it will be
      impossible to deny lawyers and potential litigants the right to give to
      campaigns or to deny judges the right to seek contributions. Both
      activities are too important in the scheme of things to permit either to
      be forbidden outright. Some other, less intrusive method is needed.
             [The canon] is that method. It permits the judge to obtain funds
      to carry out a campaign but eliminates the specter of contributions
      going from the hand of the contributor to the hand of the judge. The
      limitation on the ability to raise funds need not cause the campaign to
      suffer, if the judge picks good people for his or her campaign finance
      committee. It is true that the committee, however well suited to the

       3. As to the federal courts that have considered this issue—whose judges
have lifetime appointments and thus do not have to engage in fundraising—the
federal courts are split. Several federal courts have held that laws similar to Canon
7C(1) are constitutional. See Wersal v. Sexton, 674 F.3d 1010 (8th Cir. 2012);
Bauer v. Shepard, 620 F.3d 704 (7th Cir. 2010); Siefert v. Alexander, 608 F.3d 974
(7th Cir. 2010); Stretton v. Disciplinary Bd. of S. Ct. of Pa., 944 F.2d 137 (3d Cir.
1991). Conversely, other federal courts have held that laws similar to Canon 7C(1)
are unconstitutional. See Carey v. Wolnitzek, 614 F.3d 189 (6th Cir. 2010);
Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).

                                        - 14 -
      task, may have trouble obtaining as much as the judge might have
      raised by personal buttonholing, but that is the point.

In re Fadeley, 802 P.2d at 41 (citations omitted). In addressing whether the canon

was narrowly tailored, the Oregon Supreme Court explained that its canon did not

sweep too broadly because under the Oregon Code of Judicial Conduct,

“[s]olicitation of funds by a surrogate of the judge’s choice is permissible; only

personal solicitation by the judge is foreclosed.” Id. at 44.

      The same reasoning applies in this case. Under Canon 7C(1), the

Respondent was not completely barred from soliciting campaign funds, but was

simply required to utilize a separate campaign committee to engage in the task of

fundraising. In other words, Canon 7C(1) is narrowly tailored because it seeks to

“insulate judicial candidates from the solicitation and receipt of funds while

leaving open, ample alternative means for candidates to raise the resources

necessary to run their campaigns.” Simes, 247 S.W.3d at 883.

      We conclude that Canon 7C(1) promotes the State’s compelling interests in

preserving the integrity of the judiciary and maintaining the public’s confidence in

an impartial judiciary, and that it is narrowly tailored to effectuate those interests.

Therefore, we hold that Canon 7C(1) is constitutional, and we approve the

referee’s recommendation that the Respondent be found guilty of violating rule 4-

8.2(b).

                        Violation of Rules 3-4.3 and 4-8.4(a)

                                         - 15 -
       Next, the referee recommended that the Respondent be found guilty of

violating rules 3-4.3 and 4-8.4(a) for making a misrepresentation to a reporter. We

conclude that this recommendation is not supported by competent, substantial

evidence in the record. See Frederick, 756 So. 2d at 86.

       At issue is the following sentence included in a newspaper article published

on November 3, 2009: “On Tuesday, [Respondent] Williams-Yulee told a Times

reporter there was no incumbent for the position she’s seeking, though County

Judge Dick Greco, Jr. currently holds it.” The Bar did not present the reporter’s

testimony at the hearing, and the Respondent testified that she had told the reporter

that there was an incumbent but that he had not announced his candidacy. We

conclude that the statement from the newspaper article, standing alone, is

insufficient evidence to support the referee’s recommendation as to guilt and,

therefore, we disapprove the referee’s recommendation with respect to rules 3-4.3

and 4-8.4(a).

                                     Discipline

       The Respondent also seeks review of the referee’s recommended discipline,

which calls for the Respondent to receive a public reprimand. The Respondent

argues that she should not be sanctioned because she did not violate the Bar rules.

In contrast, the Bar argues that the referee recommended the appropriate sanction

in this case.

                                        - 16 -
      In reviewing a referee’s recommended discipline, this Court’s scope of

review is broader than that used to review the referee’s findings of fact because,

ultimately, it is this Court’s responsibility to order the appropriate sanction. See

Fla. Bar v. Anderson, 538 So. 2d 852, 854 (Fla. 1989); see also art. V, § 15, Fla.

Const. At the same time, however, this Court will generally not second-guess the

referee’s recommended discipline, as long as the recommended discipline has a

reasonable basis in existing case law and the Florida Standards for Imposing

Lawyer Sanctions. See Fla. Bar v. Temmer, 753 So. 2d 555, 558 (Fla. 1999).

      The referee found that the Respondent’s conduct was negligent, as opposed

to being intentional. Thus, standards that address negligence apply to this case.

Standards 6.13 4 and 7.3, 5 which both pertain to public reprimands, support the

referee’s recommendation.

      In addition, case law indicates that this Court has imposed a public

reprimand in circumstances where the misconduct is neither continuous nor

involves an intentional pattern of deceit. Compare Fla. Bar v. Cocalis, 959 So. 2d

163, 167-68 (Fla. 2007) (concluding that the respondent’s isolated misconduct

       4. Florida Standard for Imposing Lawyer Sanctions 6.13 states in pertinent
part that “[p]ublic reprimand is appropriate when a lawyer is negligent either in
determining whether statements or documents are false . . . .”

        5. Florida Standard for Imposing Lawyer Sanctions 7.3 provides in part that
“[p]ublic reprimand is appropriate when a lawyer negligently engages in conduct
that is a violation of a duty owed as a professional and causes injury or potential
injury to . . . the public, or the legal system.”

                                        - 17 -
warranted only a public reprimand), with Fla. Bar v. Miller, 863 So. 2d 231, 235

(Fla. 2003) (concluding that the respondent’s continuous and intentional pattern of

deceit was more egregious than the circumstances under which the Court has

approved a public reprimand), and Fla. Bar v. Forrester, 818 So. 2d 477, 484 (Fla.

2002) (concluding that the respondent’s conduct did not involve an isolated

instance of neglect or a lapse in judgment warranting a public reprimand, but

instead involved intentionally concealing an exhibit and misrepresenting its

whereabouts). This Court has also imposed a public reprimand where there is an

absence of prior misconduct. See, e.g., Cocalis, 959 So. 2d at 168 (noting that the

respondent had “no previous disciplinary record”); Fla. Bar v. Shannon, 398 So. 2d

453, 454 (Fla. 1981) (stating that the “Respondent has no record of past

professional misconduct”).

      Moreover, the referee found no aggravating factors and four mitigating

factors: absence of a prior disciplinary record; absence of a dishonest or selfish

motive; timely good faith effort to make restitution or to rectify consequences of

misconduct; and full and free disclosure to disciplinary board or cooperative

attitude toward proceedings. Based upon the facts in this case, the standards, and

established case law, we conclude that the referee’s recommended sanction of a

public reprimand is appropriate.

                                        - 18 -
                                  CONCLUSION

      Accordingly, we approve the referee’s findings of fact and recommendation

of guilt with respect to rule 4-8.2(b), disapprove the referee’s findings of fact and

recommendation of guilt with respect to rules 3-4.3 and 4-8.4(a), and approve the

referee’s recommended discipline. By publication of this opinion, Lanell

Williams-Yulee is hereby publicly reprimanded.

      Judgment is entered for The Florida Bar, 651 East Jefferson Street,

Tallahassee, Florida 32399-2300, for recovery of costs from Lanell Williams-

Yulee in the amount of $1,860.30, for which sum let execution issue.

      It is so ordered.

PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY, JJ., concur.
POLSTON, C.J., and CANADY, J., concur in part and dissent in part.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Original Proceeding – The Florida Bar

John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida;
Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida; and Jodi
Anderson Thompson, Bar Counsel, The Florida Bar, Tampa, Florida,

      for Complainant

Ernest Jay Myers, Orlando, Florida,

      for Respondent

                                        - 19 -
Honorable Roberto Arias, Chair, Judicial Ethics Advisory Committee,
Jacksonville, Florida; and James Calvin Goodlett, Staff Counsel, Judicial Ethics
Advisory Committee, Tallahassee, Florida,

      Responding with comments

                                       - 20 -