One and Inseparable: Dilution and Infringement in Trademark Law

Abstract

This Article provides a comprehensive analysis of dilution and explores the relationship between that theory and traditional infringement. After elaborating this unified approach, the paper concludes that dilution is the transitional law of trademark. The breadth of dilution allows court to extend protection during periods where infringement cannot due to changes in technology or conditions that leave its doctrine outmoded. Once infringement adjusts, however, courts rein in dilution to prevent the creation of in gross property rights for marks. This cycle occurred twice in the last century (once in the 1920s-50s, and then again in the 1990s) and shows that dilution has almost no role as an independent action.