Consumers in the 19 century had more face—to-face interaction with the manufacturer of the product they were purchasing. However, as 20 century consumers become less aware of where there products were coming from, Congress determined when creating the Trademark Act of 1905 that trademarks would serve to provide this information to consumers. However, trademark infringement cases were still limited to cases of direct competition and more specifically to goods with similar descriptive properties. Rather than proving dilution of the senior mark by the junior mark, the senior mark had to prove consumer confusion.
Dilution statutes until this point were only at the state level. A heavily contested issue with the 1988 Trademark Law Revision Act was dilution and whether it should be included in the act. It was passed in the Senate with a dilution provision, but removed from the House version before being passed. However, in 1996 Congress, without hesitation, amended the 1946 Lanham Acts to include a section on dilution, the Federal Trademark Dilution Act (FTDA).
The court must determine if it was meant to require proof that actual harm was caused or merely to mean a likelihood of harm. Dilution has been defined by the FTDA as the “lessening of the capacity of a famous mark to identify and distinguish goods or service, regardless of the presence or absence of competition between the owner of the famous mark and other parties, or likelihood of confusion, mistake, or deception. "
Dilution through tarnishing may create a negative association with the goods or services covered by the senior mark. In order to dilute a more senior mark, the junior mark must be sufficiently similar to the Plaintiff’s mark in order to cause dilution.
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