Interpreting the Federal Trademark Dilution Act of 1995: The Logic of the Actual Dilution Requirement

The Federal Trademark Dilution Act of 1995 creates a cause of action for trademark dilution. In contrast to trademark infringement law, which requires a showing of consumer confusion about the source or affiliation of goods and services, dilution law protects the distinctive quality and selling power of the trademark itself, even if consumers are not confused. The Fourth Circuit Court of Appeals, emphasizing the statute’s requirement that the defendant’s trademark “causes dilution” of the distinctive quality of an established trademark, has required evidence of an actual diminution of the established trademark’s selling power. The Second Circuit Court of Appeals has read the statute to require just a likelihood of dilution, and has held that circumstantial evidence of probable dilution is enough to prove a violation. This Note argues that the Fourth Circuit’s interpretation is more consistent with the text of the statute and with the public interest in trademark law.