Surveys in Dilution Cases II
| Author | Shari Seidman Diamond |
| Pages | 155-162 |
155
7B
Surveys in Dilution
Cases II
Shari Seidman Diamond
One majorissuehascreated aparticularchallenge forthe editors of this
book: surveys involving dilution. We agree on anumberof features
thatshould characterizesurveys measuring fame and association when
evidence in acasealleging likelihood of dilution byblurring isrequired,
but wehavenotbeen able toidentifyasatisfactory agreed-upon wayto
measurelikelihood of dilution, the ultimatefinding acourt must make
underthe TrademarkDilution Revision Act(TDRA).1Moreover,we
disagree on the meaning and importance of thisgap forproving likeli-
hood of dilution.
FAME SURVEYS
The TDRA makesitclearthatmarksareeligible forprotection from
likelihood of dilution onlyif theyarefamous marks,defined as“widely
recognized bythe general consuming public of the United Statesasa
designation of source of the goodsorservicesof the mark’s owner.”2
Boththe phrase“general consuming public”and the legislativehistory
of the TDRA reveal arejection of the “niche fame”3thatsome courts
recognized underthe earlierFederal TrademarkDilution Actof 1996
(“FTDA”).4The morestringentstandardforfame underthe TDRA
1. 15 U.S.C. §1125(c).
2.15U.S.C. §1125(c)(2)(A).
3.See JerreSwann, chapter7Aondilution, text atn.28.
4. E.g., Advance Rent-A-Car,Inc. v.Enter.Rent-A-Car,Co., 238F.3d378, 380–81
(5thCir.2001).
The authorisgratefulforhelpfulinputfrom Gerald FordandMarkMcKennaon thischapter.
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