Dilution legislation gains momentum but raises some concerns; a federal law might impair First Amendment rights

Article Abstract:

Lobbying for a federal dilution law has come from the ABA's Intellectual Property Section as well as other quarters. State dilution laws form a patchwork, existing in about 50% of states, and few courts have spoken on the precise interpretation of state dilution law. Proposals to add a new Section 43(c) covering dilution to the Lanham Act have previously failed in Congress, but the push for federal coverage of dilution continues. The Model State Trademark Bill would make laws more uniform at the state level. Opponents fear such a law would impinge on the right to freedom of speech.

Freedom of speech, Protection and preservation

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Dilution Act may limit commercial parodies; ads poking fun at another's famous mark may no longer be allowed under the new law

Article Abstract:

Owners of famous trademarks have in the Trademark Dilution Act a way to stop product parodies which the Lanham Act may have permitted. The commercial demarcation of the act is much broader than the fair use doctrine of the copyright law. The act's focus on commercial use is, however, problematic. Considering the free speech interests which are a part of parody involve this device's expressive rather than its commercial nature. The distinction between commercial and noncommercial uses may be a difficult one to draw.

Parody

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H.R. 1295, which is intended to create a new cause of action for the dilution of 'famous' marks, may be construed as granting owners rights that are overbroad

Article Abstract:

Legislation now in the House of Representatives to amend the Lanham Act will sow confusion because it inadequately defines 'famous' and gives little guidance for actual use. HR 1295 would create a federal version of the protection for famous marks now offered explicitly by 27 states and through the common law by others. However, the bill does not limit applicability to truly and nationally famous marks, and its definition is circular. It might be ineffective, but it could also drastically change trademark law.

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