	Introduction

The Trademark Dilution Revision Act of 2006 ( H.R. 683 ) was passed by the House on a vote of 411 to 8, on April 19, 2005. The Senate passed H.R. 683 with an amendment in the nature of a substitute, by unanimous consent, on March 8, 2006. Among other things, the amendment added a non-commercial use liability exclusion to protect free speech interests, and addressed concerns raised by Internet service providers over secondary liability for trademark dilution by their end users. This report provides an overview of trademark law in general, describes the Federal Trademark Dilution Act (hereinafter "FTDA"), and summarizes several judicial opinions interpreting the FTDA. As the sponsor of H.R. A federal trademark registration, however, entitles the owner of the mark to pursue two independent causes of action for infringement, under the following sections of the Lanham Act:
Section 32: "Any person who shall, without the consent of the registrant—use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive ... shall be liable in a civil action by the registrant...." Section 43: "Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person ... shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act." "Dilution" is statutorily defined in 15 U.S.C. § 1127 to mean "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." The FTDA entitles the owner of a famous mark to seek injunctive relief from a court "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." Judicial Interpretation of the FTDA

Since the FTDA was enacted, some trademark owners have attempted to use the law in ways that arguably go beyond the statute's scope and purpose (e.g., some owners of insufficiently famous marks have tried to establish a federal dilution claim, and others have brought suit under the FTDA to prohibit parody and criticism of their marks). However, in 2003, the U.S. Supreme Court in Moseley v. V Secret Catalogue reversed the summary judgment on the dilution claim. Allows federal dilution protection for famous descriptive marks that have acquired distinctiveness. Some observers and legislators wonder whether the act too heavily favors major corporations over small businesses and future businesses. Others raise concerns that it may negatively affect consumer rights and free speech. On September 25, 2006, the House, by unanimous consent, agreed to the Senate amendment, and the President signed the bill into law on October 6, 2006. The legislation more precisely defines statutory elements of the FTDA (such as "famous," "distinctive," "blurring," and "tarnishment") and expressly clarifies the standard of harm and other eligibility requirements for bringing a dilution claim.
The Federal Trademark Dilution Act of 1995 (FTDA) amended section 43 of the Trademark Act of 1946 to provide a new federal cause of action for the dilution of famous, distinctive marks. "Trademark dilution" is statutorily defined in 15 U.S.C. § 1127 to mean "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." Under the FTDA, the owner of a famous mark may seek an injunction against another person's commercial use 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.
Since the FTDA was enacted, however, some trademark owners have sought to use the law in ways that arguably go beyond the statute's scope and purpose (e.g., owners of insufficiently famous marks attempting to sustain a FTDA action, or others trying to apply the FTDA to prohibit parody and criticism of their marks). In adjudicating these expansive claims, several federal courts have narrowly interpreted the FTDA (notably the United States Supreme Court in the 2003 case Moseley v. V Secret Catalogue, Inc.), and protection against trademark dilution is said to be challenging if not impossible to obtain, according to many intellectual property scholars. There is a split among the regional federal circuit courts of appeal over the meaning and application of several central FTDA elements. For example, one federal circuit court has determined that the federal anti-dilution law does not apply to "descriptive" marks that have acquired distinctiveness over time, including famous ones such as MCDONALD'S or KRAFT, because they lack "inherent distinctiveness."
The Trademark Dilution Revision Act of 2006 (H.R. 683) is a legislative response to these issues, offering more precise definitions for key terms in the FTDA (such as "famous," "distinctive," "blurring," and "tarnishment") and expressly clarifying standards of proof and other eligibility requirements to obtain relief under the FTDA. Critics of H.R. 683, however, raise concerns that the bill too heavily favors major corporations over small and future businesses. In addition, they worry that the bill could negatively affect free speech rights, small business commercial speech, and consumer interests. Finally, they believe that the bill amends federal trademark law in a manner that essentially confers to major corporations a monopoly over the use of famous marks that may contain common words and phrases.
H.R. 683 was passed by the House on a vote of 411 to 8, on April 19, 2005. The Senate passed H.R. 683 with an amendment in the nature of a substitute, by unanimous consent, on March 8, 2006. Among other things, the amendment added a non-commercial use liability exclusion to protect free speech interests, and addressed concerns raised by Internet service providers over secondary liability for trademark dilution by their end users. On September 25, 2006, the House, by unanimous consent, agreed to the Senate amendment. The President signed the bill into law on October 6, 2006, P.L. 109-312.