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Hofstra Law Review

Authors

Kenneth L. Port

Abstract

After nearly 20 years of effectiveness, the Federal Trademark Dilution Act (FTDA) remains as controversial as ever. What the 20 years of jurisprudence has taught us is that academics have been right all along. Dilution is either unconstitutional, inappropriate, or simply misguided legislation. This article calls for its repeal. A thorough literature review shows that most academics oppose dilution. A study of all trademark litigation demonstrates that the cause of action of pure dilution never appears in reported cases anymore. The existence of the FTDA gives trademark holders the perverse incentive to claim that all marks are famous as “fame” has become the trademark gold standard to which every much should aspire, rather than identifying the source of the good or service. This perverse incentive has led to the commodification of trademarks — seeing trademarks primarily as an asset to be bought, sold, and hypothecated rather than an identifier of source. As this perverse incentive is not contemplated by the Lanham Act, the Common Law of trademarks or even the Constitution, the FTDA ought to be repealed so that trademarks can focus on identifying source, the purpose of their creation.

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