The federal trademark dilution act

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In 1995, Congress amended the Lanham Act to cover non-competing uses of a trademark. Section 43(c)(1) of the Lanham Act11, the Federal Trademark Dilution Act, became effective on January 16, 1996, and provides that:

The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection. In determining whether a mark is distinctive and famous, a court may consider factors such as, but not limited to--

(A) the degree of inherent or acquired distinctiveness of the mark;
(B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used;
(C) the duration and extent of advertising and publicity of the mark;
(D) the geographical extent of the trading area in which the mark is used;
(E) the channels of trade for the goods and services with which the mark is used;
(F) the degree of recognition of the mark in the trading areas and channels of trade used by the marks' owner and the person against whom the injunction is sought;
(G) the nature and extent of use of the same or similar marks by third parties; and
(H) whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principle register.


Just in case the reader missed it the first time, Congress reiterated the fact that the Trademark Dilution Act does not cover the noncommercial use of a mark. The Act further provides that:


a mark shall be deemed to be in use in commerce (1) on goods when; (a) it is placed in an manner on the goods or on their containers or the displays associated therewith or on the tags or labels affixed thereto, or if the nature of the goods makes such placement impracticable, the documents associated with the goods or their sale, and (b) the goods are sold or transported in commerce, and (2) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce

Finally, the Act provides that:
The term "dilution" means the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of
(1) competition between the owner of the famous mark and other parties, or
(2) likelihood of confusion, mistake, or deception.

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This federal trademark dilution act is associated with the trademark and the protection of thefts arising due to identity of a business . An actual harm requirement hurts the unsophisticated consumer by requiring consumer confusion before the famous brand can ask for an injunction pursuant to the Federal Trademark Dilution Act.From the time of the Industrial Revolution trademarks have been important to commerce. Marks were used to identify a manufacturer’s product and to differentiate it from other products in the market.