The Trademark Dilution Revision Act of 2006: A Welcome—and Needed—Change

Some have argued that the changes to the Federal Trademark Dilution Act (the “FTDA”) embodied in the recently enacted Trademark Dilution Revision Act of 2006 (the “TDRA”) threaten to infringe upon the right to free speech. This is simply not the case. The FTDA has always protected First Amendment rights, and the TDRA clarifies and strengthens those protections. While the concept of dilution was introduced in 1927, there was no federal dilution law in the United States until 1995, when Congress passed the FTDA. Since then, various federal courts have reached different conclusions regarding issues such as: (1) what constituted fame, including whether marks that were only famous in a niche market could be protected; (2) whether the FTDA applied to marks that had acquired distinctiveness; and (3) how to prove dilution