Dilution

Abstract:     
Ever since the creation of federal dilution law, legal commentators have expressed consternation about this variation of the trademark entitlement. 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. By contrast, dilution grants trademark holders an injunctive remedy for the use of their famous marks by another even when consumers are not confused. This Article explores how federal dilution law is actually being judicially enforced. To do so, it examines the enforcement rates of dilution claims in reported cases and in unreported trademark filings. The data show that dilution has not been as powerful a theory of infringement as one might expect. Judicial enforcement of dilution law is not robust today and has been eroding over time. Quantitative and qualitative data derived from published opinions and from trademark infringement filings indicate that after a period of initial broad interpretation and sometimes even enthusiastic embrace of dilution law, courts in recent years have become rather chary of it. The Article next examines some reasons why this might be so and why trademark holders have not fully adapted their pleading practices to these developments. The Article then explores some of the implications of the judiciary's treatment of federal dilution law.

Keywords: trademark dilution, intellectual property, Lanham Act, FTDA

JEL Classifications: K29, K39, O34

Accepted Paper Series