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The new federal anti-dilution act, the Trademark Dilution Revision Act of 2006 (the "TDRA"), promises to restore an anti-freerider tool to the hands of judges who wish to grant expansive trademark rights to famous mark owners. The impulse to provide this kind of relief is grounded in a sound principle: between the entity that created the famous mark and others who wish to profit from it in foreseeable collateral markets, the mark creator is usually the party that has a superior claim to capture that collateral value and to ensure the value of the mark for future exploitation in a variety of contexts.

The problem, of course, is that this theory in no way explicitly supports the TDRA, nor does the TDRA articulate how such a doctrine ought to be applied. This is because the TDRA continues to be grounded-officially, at least-in the rhetoric of dilution theory. As I have written elsewhere, it is not that a case for dilution theory cannot be made. It can. It is just that dilution is not the most natural or compelling rationale for providing expansive protection for famous trademarks.