State of the State: Is There a Future for State Dilution Laws?

Abstract

For almost fifty years, until the Federal Trademark Dilution Act arrived in 1996 (FTDA), state dilution laws existed in relative obscurity, below the radar screens of many trademark lawyers. After the passage of the Trademark Dilution Revision Act of 2006 (TDRA), there is little reason for the existence of a parallel, and non-uniform set of state laws. However, neither express preemption nor repeal appears to be a realistic option in the foreseeable future. As long as they do not interfere with the operation of federal law, and do not upset the balances built into federal law, their continued existence will not significantly affect the path of trademark law. And, while state trademark law might have a limited role as a "gap filler," that role must be circumscribed to prevent interference with the goals of federal law.