Dilution and Free Speech in the U.S., Reprise

Abstract

This Chapter address the topic of trademark dilution — the additional protection granted to famous trademarks under United States (U.S.) law. In particular it considers whether either form of dilution (dilution by blurring or by tarnishment) is an unconstitutional restriction on speech in light of recent U.S. Supreme Court caselaw. I argue that dilution by tarnishment is likely unconstitutional under now-prevailing law, and that there’s at least a plausible argument that dilution by blurring is unconstitutional as well. I do not necessarily predict that courts will hold either form of dilution unconstitutional. But to avoid that conclusion, courts will have to develop distinctions that are not now apparent in the law.