The Federal Trademark Dilution Law: Is It Working?

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In the past 15 years, Congress has enacted two versions of a federal trademark dilution law. These laws have been passed in response to lobbying by brand owners to provide broader protection for famous trademarks beyond that provided under the trademark infringement laws. In contrast with trademark infringement laws, which require a finding of likelihood of confusion, the federal trademark dilution laws are designed to protect famous trademarks where no likelihood of confusion exists. With so much time having passed since the first federal trademark dilution law was enacted, it is appropriate to ask whether the federal dilution laws are providing owners of famous trademarks with the protection that they want, without diminishing the rights of others to compete fairly in the market place. Unfortunately, but not unpredictably, the answer seems to be mixed.

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