Apparently I never posted my Action Alert message on H.R. 683. But never fear, here is Wally's response.
Dear Patrick:
Thank you for contacting me to express your concerns about H.R. 683, the Trademark Dilution Revision. Act. I appreciate hearing from you on this matter.
As you may know, Representative Lamar Smith of Texas introduced H.R. 683 on February 9,2005. This legislation aims to clarify the intent of Congress in an earlier law, the Trademark Act of 1946, with respect to "dilution" of trademarks. Dilution is defined as the lessening of a trademark's capacity to identify and distinguish goods and services. The likelihood of confusion, mistake, or deception on the consumer's part is not considered to be necessary for a dilution to occur. However, in the 2003 case of Mosely v. V Secret Catalogue, Inc., the Supreme Court held that the 1946 law required a trademark owner to prove "actual harm," even for a charge of dilution. H.R. 683 clarifies that a judge may consider other relevant factors in determining whether dilution has occurred.
The House of Representatives passed H.R. 683 by a 411-8 vote on April 19, 2005. I supported this bill because I believe it refines existing trademark law and strikes a more reasonable balance between the interests of trademark owners and other parties. As a strong supporter of private property rights, I believe it is important to ensure that the law adequately protects trademark ownership.
While I understand your concern that the dilution provisions of H.R. 683 could create an unfair advantage for established companies, the bill also aims to reduce trademark dilution lawsuits by narrowing the definition of "trademark" and listing specific factors required to prove: dilution. Additionally, the sponsors of the Trademark Dilution Revision Act recognized the importance of free expression by explicitly exempting fair use of a trademark for "purposes of. identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods and .services of the famous mark owner."
Following its approval by the House, H.R. 683 now moves to the Senate for further consideration. If you have not already done so, you may wish to contact either or both of your U.S. senators, Dianne Feinstein and Barbara Boxer, so that they may have the benefit of hearing your views.
Again, thank you for your correspondence. As always, please don't hesitate to contact me in the future regarding this or any other federal issue important to you.
Sincerely,
Wally Herger
Member of Congress
1 comment:
How would this law affect, say, Andy Warhol's famous paintings of Cambell soup cans? Or an Ansel Adams photograph in which an oil company logo is clearly visible? A book on industrial design in which trademarks appear on various products, a book on the history of the Union Pacific, whose trademark is emblazoned across the side of its locomotives.
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