From the conclusion:
McCarthey’s position that “distinctiveness” and “fame” are synonymous terms does not square with the plain language of the statute and with the way that the terms are used in the Trademark Law Revision Commission Report. The Second Circuit’s view treats the statutory language respectfully and fully reflects the concepts expressed in Frank Schechter’s pioneering work. And while the Supreme Court has yet to completely weigh in on this disagreement, it’s thumb is already on Justice Leval’s side of the scales. The FTDA appears to require proof of both fame and distinctivenss.