The Trademark Reporter®
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TM Reporter

May-June, 2016 Vol. 106 No. 3 Back to TMR Main Page
What Can Harm the Reputation of a Trademark? A Critical Re-Evaluation of Dilution by Tarnishment
This critical reassessment of tarnishment addresses three related issues: the historical origins of tarnishment in both the United States and Europe; the ways in which famous marks’ reputations have more recently been constructed in tarnishment actions, showing that there has been insufficient engagement with the complex, multivalent notion of brand reputation; and whether, in the absence of consumer confusion, unauthorized uses of famous marks in fact create reputational harm.

Taken together, these issues show that tarnishment raises many complex and unresolved issues. Is dilution action really about preventing cognizable harm at all, or is it ultimately concerned with the morality of trade behavior? And what might the consequences of such a reconceptualization be?