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Transnational Law & Contemporary Problems



In the United States, trademark antidilution protection is back—maybe. Proposed by Frank Schechter in the 1920s, adopted in various incarnations in some states over the next few decades, and ultimately introduced in a slightly different form in federal trademark law in 1995, the dilution provisions drew a cool reception in the courts. By the late 1990s, an increasingly restive judiciary was constraining the federal dilution provisions in various ways, most notably by requiring mark owners to prove actual dilution in order to establish liability, a requirement endorsed by the United States Supreme Court in Moseley v. V Secret Catalogue, Inc. Eventually, in 2006, Congress responded by overhauling the federal dilution provisions— specifying a likelihood of dilution standard, redefining the threshold fame requirement, defining dilution by blurring and dilution by tarnishment, and introducing other important changes. Today, courts are only beginning to confront the challenge of applying the amended provision.

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