Intellectual Property Law

No Gradual Whittling Away Of Distinctiveness Among The Very Young

By Marty Schwimmer

Alexndra Roberts: "New-School Trademark Dilution: Famous Among the Juvenile Consuming Public":

The recently enacted Trademark Dilution Revision Act of 2006 recali- brated the degree of fame necessary to garner protection: the TDRA applies only to a mark ?widely recognized by the general consuming public of the Unit- ed States as a designation of source of the goods or services of the mark?s own- er.? By privileging those major players who succeed in turning their brands into household names, the TDRA strengthens incentives for mark-owners to ensure their logos and brand names are well-recognized not only among adult consum- ers, but also among children. This Article examines a set of marketing beha- viors aimed at children that the TDRA?s revised fame standard both reflects and rewards. Deeming fewer marks famous may serve the immediate purpose of creating a higher bar for plaintiffs to successfully bring dilution claims, but that bar should be set at age twenty-one to avoid rewarding firms for making loyal consumers out of teenagers, tweens, kids and even infants.

Full post as published by Trademark Blog on August 24, 2009 (boomark / email).