Martin Schwimmer
notes a new article on the
US Trademark Dilution Revision Act of 2006 (TDRA), which applies only to a mark "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner".
'New-School Trademark Dilution: Famous Among the Juvenile Consuming Public' [
PDF] by Alexandra Roberts in (2009) 49(4)
Pierce Law Review 579-645 argues that
The heightened degree of fame the TDRA requires narrows the universe of marks it protects, leaving insufficiently famous marks with protection only under trademark infringement laws. Yet, for marks that qualify, the TDRA offers hefty rewards upon a showing that dilution is merely likely. As such, it provides strong incentives for wealthy companies to strive to make each mark "widely recognized by the general consuming public of the United States". While the dilution doctrine offers more potent protection, children have simultaneously become both more sophisticated and more sought-after as consumers.
Many courts have already vindicated consultants' use of children as part or all of the relevant universe for survey purposes. Children’s impressions and opinions about brands will only increase in importance as they continue to gain spending power and product savvy. These legal and social forces coalesce where the TDRA meets marketing to kids, making dilution law a driving force in the commercialization of childhood
Roberts comments that
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 consumers, but also among children. This Article examines a set of marketing behaviors 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.
