Copyright (c) 2006 The Columbia Law Review
Columbia Law Review
106 Colum. L. Rev. 1029
Ever since the creation of federal dilution law, legal commentators have expressed consternation about this variation of the trademark entitlement. 1 Dilution law has been called "absolute and unlimitable," 2 "powerful," 3 and "immensely popular." 4 Commentators have labeled dilution law "a fundamental shift in the nature of trademark protection," 5 concluded that "plaintiffs frequently win" their dilution claims, 6 and wondered whether the statute will prove to be a "disaster." 7 Some commentators are concerned that dilution law represents an expansion in property rights at the expense of the public domain. 8 Others worry that it stifles expression, hampers commercial communication, or reduces competition. 9 Richard Posner frets about dilution's "seductive appeal." 10
This is exactly what one would expect from reading the federal dilution statute. On its face, dilution law looks like a powerful form of protection, one that should be easy to enforce. 11 The Federal Trademark Dilution Act (FTDA) protects "the owner of a famous mark ... against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark." 12 Prior to the advent of this form of protection, the owner of a mark could recover for trademark infringement under the Lanham Act only if the commercial use of its mark by someone else caused consumer confusion. 13 By contrast, dilution grants trademark holders a remedy for the use of their famous marks ...
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