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Although the law of trademarks and unfair competition at one time concerned itself only with false designations of origin that were likely to confuse consumers about the origin of goods or services, with the emergence of the dilution doctrine during the twentieth century individual states--and ultimately Congress--began offering the owners of particularly strong marks the opportunity to prevent others from using these marks even in ways which were unlikely to lead to consumer confusion. In so doing, the law began to treat trademarks as property in themselves--the product of a trademark owner's investment in good will--rather than merely as signals enabling consumers to determine who was accountable for the goods or services in connection with which the trademark appeared. Dilution law protects the owner of a strong trademark against unauthorized uses, even when those uses would not be considered infringing under traditional confusion-based trademark doctrine because a dilutive use does not confuse consumers about the origin of goods or services. Thus, while “[h]istorically, the Lanham Act has attempted to balance the two competing goals of protecting consumers and protecting a trademark owner's investment,” dilution law, in contrast, is concerned only with the latter. Although the necessity of extending trademark protection to nonconfusing uses remains doubtful, it appears that dilution laws are here to stay. The majority of states now recognize the dilution doctrine, and it was incorporated in federal trademark law in 1995, when Congress enacted the Federal Trademark Dilution Act (“FTDA”) as an amendment to the Lanham Act.

This Article explores some emerging problems in dilution law and their treatment under state and federal dilution laws, respectively. An examination of these problems reveals that their resolution under state laws is often quite different from their resolution under the FTDA. These problems are serious, and the divergence in approach between state laws and the federal statute gives rise to uncertainty and nonuniformity regarding the scope of dilution laws. In various contexts, this uncertainty and nonuniformity has a chilling effect on both competition and free expression, and threatens to erode the public domain by giving certain trademark owners the opportunity to obtain the near-equivalent of copyright or design patent protection without being subject to the limitations of those statutory regimes.

Publication Citation

6 Nev. L.J. 447 (2006).