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President Bush recently signed into law the Trademark Dilution Revision Act of 2006 (TDRA). The TDRA revitalizes and broadens the reach of federal dilution laws that had been substantially narrowed three years ago by the Supreme Court's decision in Moseley v. V Secret Catalogue (1) and by other federal court decisions. Although the TDRA modifies the former Federal Trademark Dilution Act (FTDA) in a number of ways, the most significant changes are that it:
1. Amends the FTDA's seminal proof requirement from actual dilution to likelihood of dilution;
2. Clarifies that marks must be famous across all markets and not just in a niche market segment to qualify for protection;
3. Clarifies that dilution by tarnishment is actionable; and
4. Clarifies that descriptive marks that acquire secondary meaning and fame are protected under the Act.
Dilution and the FTDA
Dilution is defined as the lessening of the capacity of a mark to identify and distinguish goods or services. Unlike trademark infringement laws, which are designed to protect the public from confusion, dilution laws exist only to protect the quasi-property right that a mark owner has in the integrity and distinctiveness of its mark. As such, neither competition nor confusion is a required element of a dilution claim.
Dilution can occur either by blurring or by tarnishment. Dilution by blurring occurs when a third party's use of the same or a similar mark causes the mark to lose its ability to serve as a unique identifier of the plaintiff's product. Examples of marks that could lead to dilution by blurring are DUPONT …