Saturday, September 08, 2007

Michigan Law Review aritcle on TDRA of 2006

The Michigan Law Review has a series called “First Impressions” and that series contains an interesting article by D. M. Cendali and Bonnie L. Schriefer, “The Trademark Dilution Revision Act of 2006: A Welcome—and Needed—Change." Here is the link.

The authors review the Act and answer some of the criticisms often made of it, both before and after the October 2006 passage and signature by President Bush. Ms. Centali is Chair of the National Copyright, Trademark & Internet Litigation Practice Group (INTA) and chair of its Dilution and Well-Known Marks Committee. The article warns that the opinions expressed are hers and not necessarily those of her associations.

She discusses the concepts of Fame, Dilution, and Tarnishment & Blurring. She discusses the concepts of “fair use” noncommercial uses for the purposes of political comment, criticism or parody, which somewhat mirror similar concepts in copyright law. Even before the revision in the law to allow prospective consideration of the “likelihood” of future dilution (a concept that reminds me of “propensity” in the military “don’t ask don’t tell” law – trying to predict an unfavorable result at some unspecified time in the future), she indicates that courts heavily favored fair use defenses. She indicates that the new statute, with some rewordings, strengthens these defenses. She indicates that a typo (using “subsection” instead of “section”) does not threaten the use of Fair Use in claims made for unregistered marks under the Lanham Act.

There is one major concern remaining, that many smaller businesses or web operators may not have the financial resources to defend themselves against dubious or frivolous “silencing” claims.