The Trademark Dilution Revision Act of 2006 ( H.R. 683 ) was passed by the House on a vote of 411 to 8, on April 19, 2005. The Senate passed H.R. 683 with an amendment in the nature of a substitute, by unanimous consent, on March 8, 2006. Among other things, the amendment added a non-commercial use liability exclusion to protect free speech interests, and addressed concerns raised by Internet service providers over secondary liability for trademark dilution by their end users. On September 25, 2006, the House, by unanimous consent, agreed to the Senate amendment. The President signed the bill into law on October 6, 2006. This report provides an overview of trademark law in general, describes the Federal Trademark Dilution Act (hereinafter "FTDA"), and summarizes several judicial opinions interpreting the FTDA. It also analyzes the provisions of the Trademark Dilution Revision Act, which clarify certain undefined elements of the FTDA and overrule judicial interpretations of the FTDA that Congress considered to be inconsistent with the original legislative intent in enacting the FTDA in 1996. Intellectual property (IP) law has three major branches, applicable to different types of subject matter: copyright (original artistic and literary works of authorship), patent (inventions of processes, machines, manufactures, and compositions of matter that are useful, new, and nonobvious), and trademark (commercial symbols). Unlike the other two disciplines, the constitutional basis for federal trademark law is not the IP clause of the U.S. Constitution, but rather the Commerce Clause. Another unique feature of trademark law is that trademark rights may arise from federal as well as state law; the coexistence of this dual system of law is not characteristic of the other IP fields. Although this report focuses on federal trademark law, it is important to keep in mind that state common law is another source of legal protection for trademark owners. A "trademark" is any word, name, symbol, or device or any combination thereof, adopted and used by a manufacturer or merchant, (1) to indicate the source of his or her goods or services and (2) to identify and distinguish the goods or services from those offered by others. For example, when a consumer walks into a shoe store and sees an athletic shoe with a "swoosh" logo on the side of it, the mark informs the consumer that the product has been manufactured by NIKE and carries with it a certain quality or reputation that the public associates with a particular shoe company. As the sponsor of H.R. 683 has explained: Trademarks give customers assurance that the goods or services they are buying are what customers think they are. If a customer has purchased items in the past from a particular company that bears a specific mark or logo, the customer has an impression, favorable or not, of that company and the goods or services it produces. So trademark law empowers consumers by giving them information that is often critical to their purchasing decisions. The principal federal statute governing trademarks is the Trademark Act of 1946 (conventionally known as the Lanham Act). This statute has been amended more than 30 times since its effective date on July 5, 1947, in response to lobbying efforts by trademark owners seeking greater protection for their marks, new technological developments such as the Internet, and U.S. treaty obligations mandating uniformity of U.S. intellectual property law with that of other countries. Under the Lanham Act, a merchant or manufacturer that wants to use a mark on a product or service must register that mark with the U.S. Patent and Trademark Office (PTO) to obtain federal protection for the mark. Failure to register a mark with the PTO does not mean that the entity using the mark has not established rights in it; once the mark is first used in commerce (a good bearing the mark is sold to the public in a bona fide transaction), state common law confers trademark protection to the mark. However, the Lanham Act provides substantial benefits and incentives to the trademark owner to seek federal registration, including the following: nationwide, constructive notice to the public of the ownership of the mark; prima facie evidence of the validity of the mark, the registrant's ownership of the mark, and the registrant's exclusive right to use the mark in interstate commerce; the ability to bring a legal action concerning the mark in federal court; the use of the U.S. registration as a basis to obtain registration in foreign countries; and the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods. A mark may be federally registered with the PTO only if it meets certain requirements. The mark must be "used in commerce," or the person must have a good faith, "bona fide intention" to use the mark in commerce. However, not all marks that are used in such manner will qualify for trademark protection. Eligibility for registration and the degree of trademark protection accorded to the mark depend largely on the mark's "distinctiveness." The requirement of distinctiveness is an important safeguard against certain generic or descriptive terms from being monopolized by one merchant to the exclusion of others that might need to use the terms to sell competing products. PTO trademark examiners and courts often refer to the following four categories of word-based marks, which correspond to the level of trademark protection that will be accorded (listed in descending order of distinctiveness): Fanciful and arbitrary terms . These marks are considered "inherently distinctive" and thus deserving of the broadest level of protection under trademark law. An example of a fanciful term is KODAK or VERIZON (these are made-up words, not drawn from regular language). An arbitrary term is one that has no necessary connection to the product being sold to which it is associated (e.g., APPLE in reference to a computer). Suggestive terms . These marks may also be considered "inherently distinctive" and entitled to a high level of trademark protection, because they require some imagination and contemplation to determine the nature of the product that is labeled with the mark (e.g., COPPERTONE for suntan lotion or 7-ELEVEN for the convenience store that originally used to be open from 7 a.m. to 11 p.m., although most of the stores now operate 24 hours a day). Descriptive words, geographic terms, and personal names . These marks are not inherently distinctive and generally cannot be registered, at least not immediately upon first use. Descriptive words directly inform the consumer of a characteristic, quality, ingredient, or function of a product (e.g., ICE COLD BEER or BEST SLEEP MATTRESSES). Similarly, geographic names (CALIFORNIA WINE) and personal names (JOE'S DINER) usually cannot be registered. However, an important exception to this general rule is that a descriptive word, geographic term, or name can be registered if it has acquired "secondary meaning." Such a term can "become" distinctive over time, if a substantial part of the public has come to regard the word as signifying a single and unique source of the product, rather than the product itself. Examples of terms that have acquired distinctiveness include MCDONALD'S, BEN AND JERRY'S, and PARK N FLY. Generic terms . These words represent the basic name of the category of the product or service being offered for sale, rather than an indication of its source. Generic terms cannot be protected as trademarks. The words MILK, CAR, BREAD are examples of this least-distinctive category; these terms are inherently incapable of being distinctive. In addition, some fanciful terms that were once distinctive can lose their distinctive quality and "become" generic, through a phenomenon sometimes referred to as "genericide." Genericide occurs when a once valid mark is so commonly used in everyday language that it no longer serves to identify a particular company but rather becomes synonymous with the entire class of products. Examples of marks that have been casualties of genericide include THERMOS, ASPIRIN, KLEENEX, BAND-AID, and CELLOPHANE. Assuming a mark satisfies the requirements discussed above for trademark protection, the merchant who first uses that mark generally has the exclusive right to use it in certain ways. The trademark owner may have several causes of action to prevent unauthorized uses of the mark (called "infringement"). If the mark is not federally registered, the owner can seek legal remedy for trademark infringement under state law, asserting that the other party's use of a copy, reproduction, imitation, or counterfeit of the mark is likely to cause confusion, mistake, or deception as to the source of origin of the goods or services.