What Is Dilution, Anyway?

Ever since the Supreme Court decided Moseley v. V Secret Catalogue, Inc. in 2003, an amendment to the Federal Trademark Dilution Act (“FTDA”) has appeared inevitable. Congress almost certainly meant to adopt a “likelihood of dilution” standard in the original statute, and the 2006 revisions correct its sloppy drafting. Substituting a “likelihood of dilution” standard for “actual dilution,” however, does not resolve a deeper philosophical question that has always lurked in the dilution debate: what is dilution, and how does one prove or disprove its probability? The statutory definition notwithstanding, this issue remains largely unanswered, leaving the courts with the responsibility—and the power—to delineate dilution’s scope. Judging from the ambiguous legislative history and the messy history of dilution in the states, courts will have broad discretion in exercising their authority. The absence of any consistent normative vision for dilution means that judges will shape that vision, along with the doctrinal framework for pursuing it. In doing so, they face a stark choice between one approach that largely comports with traditional trademark theory, and another that transforms the law’s purpose and effect. Because the more radical option imposes substantial costs without any obvious social benefits, courts would do well to adopt the more modest version