The Federal Trademark Dilution Act ("FTDA") has failed to protect, in the manner intended by Congress, the subset of trademarks that have achieved a high threshold of fame from subsequent uses that dilute or tarnish those trademarks. Courts have applied inconsistent measures of fame to the trademarks of the litigants before them and a poor wording choice in the drafting of the FTDA has led the Supreme Court to conclude that famous trademarks must sustain actual harm to their distinctiveness before their owners can receive the equitable remedy provided under the Act. Based on the legislative history of the Act, both of these situations are contrary to Congress's intent, and they reduce the effectiveness of the FTDA. This Article argues that Congress should now amend the FTDA to create a famous mark register, which will lead to more consistent determinations of the fame of a trademark, and will clearly permit an equitable remedy before famous trademarks lose any of their distinctiveness.
Matthew C. Oesterle,
It's as Clear as Mud: A Call to Amend the Federal Trademark Dilution Act of 1995,
Chi.-Kent L. Rev.
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol81/iss1/11