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.
11 Intell. Prop. L. Bull. 199 (2007).