The Trademark Dilution Revision Act of 2006 was signed into law last week, amending Section 43(c) of the Lanham Act and clarifying certain issues under the Federal Trademark Dilution Act of 1995. The central provision of the new law is the creation of a cause of action for the owner of a trademark against anybody who uses it in a way that is "likely to cause dilution" of the mark, overruling the 2003 Supreme Court decision Moseley v. V Secret Catalogue, 537 U.S. 418 (2003), which interpreted the Lanham Act to require actual (not just likely) dilution.
There had been some concerns expressed about the possible narrowing, or even elimination, of fair use defenses in earlier drafts of the bill, but the final version broadly excludes from liability "any fair use, including a nominative or descriptive fair use ... other than as a designation of source for the person's own goods or services," including use in "identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner." The Act also retains the exclusions for news reporting and commentary, and for noncommercial use of a mark. The exclusion for "noncommercial uses" was omitted from earlier drafts, but was reinserted in response to protests from artist groups and others claiming the need to protect noncommercial speech that does not necessarily parody, criticize, or comment on the trademark owner.