A Skeptical View of the Trademark Dilution Revision Act

Robert G. Bone

Boston University School of Law Working Paper 07-36

The Trademark Dilution Revision Act (“TDRA”),  adopted in October 2006, was the result of an almost two-year campaign to overturn the Supreme Court’s 2003 decision in Moseley v. V Secret Catalogue, Inc.  This brief essay takes a critical look at the TDRA.  It argues that while some of the TDRA provisions are improvements, the statute as a whole represents a setback for American trademark law.  By signaling congressional interest in shoring up dilution liability, the TDRA opens the door to more aggressive judicial application of the statute and broader interpretation.  A stronger Section 43(c) threatens to sever trademark law from its policy moorings and send it in directions that risk high social costs.  The problem with the TDRA, and the original Section 43(c) that it amends, is the same as the problem with dilution law more generally.  Dilution, and especially dilution in its blurring form, lacks a coherent policy foundation.  The lack of clear normative direction gives particularly wide latitude to industry groups to influence the legislative process in ways that serve their private interests at the expense of the public interest.

Keywords: dilution, federal anti-dilution statute, Section 43(c), trademark law, Trademark Dilution Revision Act

JEL Classification: K11, K39

Accepted Paper Series

Citation: Robert G. Bone, "A Skeptical View of the Trademark Dilution Revision Act," 11 Intellectual Property Law Bulletin 187 (2007).

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Robert G. Bone Contact Information

Email: rbone@law.utexas.edu
NOW AT: The University of Texas at Austin
Law School
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Austin, TX 78705-3299

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