24
Aug/09

No Gradual Whittling Away Of Distinctiveness Among The Very Young


Alexndra Roberts: “New-School Trademark Dilution: Famous Among the Juvenile Consuming Public“:

The recently enacted Trademark Dilution Revision Act of 2006 recali-
brated the degree of fame necessary to garner protection: the TDRA applies
only to a mark “widely recognized by the general consuming public of the Unit-
ed States as a designation of source of the goods or services of the mark’s own-
er.” 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 consum-
ers, but also among children. This Article examines a set of marketing beha-
viors 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.

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