Wednesday, November 07, 2007

Trademark Dilution Revision Act aims more at prevention of encroachment rather than actual tarnishment

There is a bit of literature around on the web that the new trademark law (Trademark Dilution Revision Act of 2006 as passed in October of 2006) really is intended not so much to protect a mark (trademark, service mark, workmark, trade dress) from consumer “confusion” as from a more fundamental “whittling away” of distinctiveness, from encroachment that would, in theory, cause the effectiveness of the brand in a fiduciary sense (in the ability to generate sales) or possibly even politically (in the ability to keep a particular social concern high on the public radar screen).

The concept seems elusive. It seems more concerned with the notion that an established “corporate” interest has a right to maintain a public perception for results-oriented reasons regardless of the intellectual value of the perception, an idea that contradicts the understanding of society that academia encourages.

There is an essay about this view by Roberta Jacobs-Meadway “The Trademark Dilution Revision Act of 2006 Becomes Law—Dilution Revived? Intellectual Property” here, at Ballard Spahr Andrews and Ingersoll, here.

See blog story on passing the law (2006/10) on the June 7 2007 entry on this blog.