Conclusion

The Trademark Dilution Revision Act brought dilution law closer to Frank Schechter's vision by crafting a remedy to protect the distinctiveness and reputation of only the most famous marks. By eliminating dilution protection for all marks not well known to United States consumers, the TDRA created luxury protection for iconic marks and eliminated protection for those that are not generally known. Although the FTDA was widely criticized as a mess, in the hearing to revise it, no one testified that federal dilution protection is not needed.127 Reports from the trademark litigation trenches confirm that dilution protection remains necessary to protect famous marks.128 Many reported cases confirm that dilution occurs even when confusion is absent or much less likely to occur.129 True dilution results in real economic damage to famous trademark owners,130 and the TDRA is well crafted to remedy this harm.

Dilution protection for famous marks benefits consumers as well. When a famous mark is diluted, consumers will be forced to expend more resources searching for the product or service they identify with the mark.131 Trademark dilution also may cause consumers to lose cultural currency. In our networked world, trademarks are touchstones of common experience that create a shared connection with strangers and make them seem like friends. The new parody exclusion, in practice, will help litigants and the courts keep dilution claims within their proper scope: focused on the specific harms of blurring and tarnishment defined in the TDRA. If blurring and tarnishment have not happened, and no consumer confusion or deception are found, trademark law permits consumers to use marks in expressive works, even if those works, like the Chewy Vuiton stuffed doggy bag, are sold commercially. The Haute Diggity Dog decision demonstrates how the TDRA has already been applied to tilt the balance of trademark rights away from owners and in favor of consumers and competitors. This new balance affirms that consumer interests in marks extend beyond the right to be protected from confusion and embrace the right to use marks as meaningful symbols in public discourse.