By: Steven M. Hinkes, The University of Memphis School of Law Class of 2015
March 3, 2014
Traditionally, the “likelihood of confusion” standard has been the touchstone used for assessing a trademark infringement claim. The Federal Trademark Dilution Act of 1995 (FTDA), however, signaled a sweeping break from that benchmark. The FTDA’s legislative history instructed courts that “[D]ilution does not rely upon the standard test of infringement, that is, likelihood of confusion, deception or mistake. Rather, it applies when the unauthorized use of a famous mark reduces the public’s perception that the mark signifies something unique, singular, or particular.” The FTDA was enacted into law in 1996. In fact, in 2003, the U.S. Supreme Court interpreted the meaning of that Act to forbid only actual dilution instead of a likelihood of dilution. But, in 2006, Congress made legislative changes which overruled that decision. Specifically, Congress reinstated the likelihood of dilution criterion.This article explains in further detail the likelihood of dilution measure, compares that yardstick to the actual dilution guideline, and evaluates whether the latter is even practical.
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