31 Pages Posted: 5 Nov 2008
Date Written: November 3, 2008
Dilution protects famous trademark owners from use of their marks by others that serve to either weaken the mark's capacity to serve as a source identifier or harm the reputation of their mark. Parody, on the other hand, is a protected form of expression under the First Amendment that allows an artist to poke fun at recognizable aspects of society. Trademarks are often the butt of detrimental attempts at parody. In the past, a substantial percentage of dilution cases have been attempts by mark holders to enjoin harmful commercial uses of their famous brands - even if such a use could loosely be construed as a "parody." Yet, the Trademark Dilution Revision Act of 2006 (the "TDRA") has carved out a broad and explicit exception for parody, one that is seemingly stronger than any protection that parodies previously enjoyed in the dilution context. It seems under the language of the TDRA, once a potentially infringing use is termed a "parody," and regardless of the degree in which it seriously harms a famous mark, the parodist has a higher probability of escaping strict judicial scrutiny than ever before. Such a result raises important questions as to the current state of dilution law.
This article explores the implications of the parody protection outlined in the TDRA and how courts may interpret it while still retaining significant judicial scrutiny over harmful or improper trademark parodies.
Keywords: dilution, parody, trademark, trademarks, parodies, TDRA, Trademark Dilution Recvision Act
Suggested Citation: Suggested Citation
Gunnell, Justin J., Evaluation of the Dilution-Parody Paradox in the Wake of the Trademark Dilution Revision Act of 2006 (November 3, 2008). Cardozo Arts & Entertainment Law Journal, Vol. 21, No. 441, 2008. Available at SSRN: https://ssrn.com/abstract=1294786