Diluting Free Expression: Statutory First Amendment Proxies in Trademark Dilution Law

Trademark dilution law, a relatively recent innovation in federal trademark doctrine, has serious implications for free expression. Dilution law purports to protect famous trademark owners from blurring and tarnishment, although critics of the doctrine suggest the harms of dilution are frequently overblown, if not imaginary. This article first highlights the differences between standard trademark infringement and trademark dilution, including the fair use provisions of the latter statute. It then analyzes the conceptual mismatch between the fair use provisions and dilution, focusing particularly on the problems with the nominative fair use doctrine. The article also explores the special problems dilution doctrine creates for parodists, including some court decisions that protect only an extremely narrow range of parodies. Finally, the article offers concluding perspectives on this difficult area of trademark doctrine.