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Trademark Dilution Revision Act of 2006

The Trademark Dilution Revision Act of 2006 was signed by President Bush on October 6, 2006, and legislatively overrules Moseley v. V. Secret Catalogue, Inc., 537 U.S. 418 (2003) which held that proof of actual confusion was required under the federal dilution statute. The new law codifies a “likely to cause dilution” standard for injunctive relief for a famous mark that is “distinctive”. (Emphasis added.)

Under the new law, “dilution by blurring” is defined as “association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.”  “[D]ilution by tarnishment” is “association arising from the similarity between a mark or a trade name and a famous mark that harms the reputation of the famous mark.”  A famous mark is one that is “widely recognized by the general consuming public of the United States as a designation of source of the goods and services of the mark’s owner.” Factors to consider in determining whether a mark “posses the relevant degree of recognition” include: (1) “duration, extent, and geographic reach of advertising and publicity of the mark, whether advertised or publicized by the owner or third parties”; (2) “[t]he amount, volume, and geographic extent of sales of goods or services offered under the mark”; (3) “[t]he extent of actual recognition of the mark”; and (4) “[w]hether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register”.