The Wages of Ubiquity in Trademark Law

Abstract

In this Article, Professor Stadler argues that an originalist construction of trademark dilution law requires those who would allege dilution to show that their marks have what Frank Schechter termed uniqueness - that is, that those marks not only are highly distinctive, but also have been associated in the public mind with a particular product or product class. To date, the trademark community has assumed that only third parties can dilute. Professor Stadler argues, however, that a trademark owner destroys the uniqueness of its own mark, thus committing what she terms the sin of ubiquity, when that trademark owner disturbs the association between its mark and the product or product class with which the public identifies that mark. Thus, when trademark owners engage in brand extension, when they task their marks with identifying a conglomerate instead of what Schechter termed a particular product, those marks become ubiquitous. Ubiquity destroys uniqueness. Without uniqueness, there can be no dilution by third parties. Thus, when it comes to dilution protection, Professor Stadler concludes that ubiquitous marks need not apply.

Keywords: rademark, dilution, schechter, ubiquity, ubiquitous, uniqueness, brand extension, licensing