Likelihood of Destruction - Restructuring the Trademark Dilution by Blurring Factors in the Trademark Dilution Revision Act of 2006

"Destroying is a necessary function in life. Everything has its season, and all things eventually lose their effectiveness and die." --Margaret J. Wheatley * I. INTRODUCTION II. THE LAW, AND ITS ORIGINAL APPLICATION III. BLURRING FACTORS IN ACTION IV. PROPOSAL FOR CHANGE A. Removal of the Fame Factor B. Irrelevance of Intent C. Quantifying the Effects of Consumer Perception--Creation of the Basis to Measure Likelihood of Dilution by Blurring, and Measuring Effects on Brand Equity V. CONCLUSION I. INTRODUCTION We have been swindled--all of us--students, professors, and practicing attorneys alike. We have been deceived into accepting what is currently the Trademark Dilution Revision Act of 2006 (hereinafter "TDRA"), and its multifactor test to measure trademark dilution by blurring, as the equitable and sensible anti-dilution law to police dilution of trademarks by blurring in the United States. With unquestioned acquiescence, courts have analyzed dilution by blurring claims without gauging the effectiveness of the TDRA. Part of this is, indeed, because federal anti-dilution law is relatively young and is still evolving. (1) Furthermore, only a few courts have interpreted the TDRA since its enactment. However, within the pool of courts that have delved into the un-navigated waters of this amended anti-dilution law, there exists a myriad of applications, explanations, and interpretations. (2) The TDRA multifactor blurring test enumerated in [section] 1125(c), the codification of the revised TDRA statute, is non-exclusive. However, from a practical standpoint, the blurring factors serve as a guideline that courts will consider first before looking to an extrinsic test unapproved by Congress. This is at least the assumption without further guidance on how to proceed with a dilution by blurring analysis. The TDRA and its blurring factors came to be through numerous case decisions; however, since its enactment, there has yet to be an effective challenge to the TDRA blurring factors for their effectiveness, utility, or relevance. In enacting the TDRA, Federal anti-dilution law morphed in two significant ways: "(i) a likelihood of dilution, rather than actual dilution, is now required to establish dilution by blurring ... [and] (ii) courts may apply six factors to determine whether a mark is likely to cause dilution by blurring." (3) It has been six years since the enactment of the TDRA; the time has come to examine the TDRA and its multifactor blurring test in order to gauge its efficacy in analyzing dilution by blurring claims. First, this comment will explain the origin of modern-day application of the TDRA and its blurring factors. Next, this comment will critically examine the application of the six factors in several key cases over the last six years to ascertain if they are, in fact, effective in achieving Congress' overarching purpose of policing trademark dilution by blurring. Finally, this comment will conclude with a proposal to implement a new methodology when examining a dilution by blurring claim, namely, creating a measurable basis upon which courts can tangibly gauge likelihood of dilution. Implementation of such a methodology will be significantly more effective in properly determining the existence of dilution by blurring. Congress made significant changes to anti-dilution law via the TDRA, positing that a user prove a likelihood of dilution, and adopting a list of redundant and inefficient factors without any guidance on how they should be effectively applied--Congress has failed us--that failure needs to be remedied. II. THE LAW, AND ITS ORIGINAL APPLICATION To know where the future of trademark dilution by blurring law must go, it is essential to understand what it is, and where it came from. Currently, trademark dilution law, in relation to blurring, states: ... "[D]ilution by blurring" is [the] association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark. …