McCarthy on Comparative Dilution

No part of trademark law that has created so much doctrinal puzzlement and judicial incomprehension as the concept of dilution as a form of intrusion on a trademark. It is a daunting pedagogical challenge to explain even the basic theoretical concept of dilution to students, attorneys and judges. Few can successfully explain it without encountering stares of incomprehension or worse, nods of understanding which mask and conceal bewilderment and misinterpretation.

With the advent of the 1988 E.U. Trademark Directive and a growing body of interpretive European Court of Justice (ECJ) case law, it is much easier than in the past to make a comparison of E.U. and U.S. trademark law, including anti-dilution law. While the anti-dilution provisions of Articles 4(4)(a) and 5(2) of the E.U. Directive are optional, in fact, every pre-2004 E.U. nation has adopted them in its domestic law. In the United States, since the enactment of the 1996 federal anti-dilution Act, in theory there is a uniform law consistent throughout the nation.

Click here for more from J. Thomas McCarthy, Senior Professor of Law at University of San Francisco, Founding Director of the McCarthy Institute of Intellectual Property and Technology Law, as well as the author of McCarthy on Trademarks & Unfair Competition.