Trademark Dilution Revision Act of 2005 Passes House Judiciary Committee

The Trademark Dilution Revision Act of 2005 (HR 683) has passed the House Judiciary Committee on March 9. A number of amendments were made to the bill, but the bill still remains very favorable to trademark owners. The bill still would overturn the Victoria Secret case and establish likelihood of dilution as the standard. The bill also still offers new definitions of dilution and blurring that I think are substantially more favorable to trademark plaintiffs than the current case law.

Recent amendments tinkered with the defenses, adding a proposed new defense for “Fair use of a famous mark by another person, other than as a designation of source for the person’s goods or services, including for purposes of identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.” (This would replace the current non-commercial use defense). The new defense would be a lot more helpful if we clearly understood the boundaries of trademark fair use, but I sure don’t. I am going to be speaking about TM fair use at a conference in April, and my general tenor will be that TM fair use really doesn’t exist, at least online. The cases decided on TM fair use generally should have turned on the lack of a TM use in the first instance, and plaintiffs still win plenty of cases that seem to fit the standards for TM fair use.

See my earlier post on the matter.

UPDATE: The law has passed. My comments on the Trademark Dilution Revision Act of 2006 as passed.