April 24, 2006 | By Fred von Lohmann

The Season of Bad Laws, Part 1: TM Dilution Revision Act

Congress appears to be awash in dangerous trademark and copyright bills. One is H.R. 683, "The Trademark Dilution Revision Act," a revision to the trademark laws that includes a little-noticed change that will put those who want to poke fun at big brands in jeopardy. EFF, Public Citizen, Public Knowledge, and others have been pushing lawmakers to restore protections for fair use, news reporting, and noncommercial uses.

Editor & Publisher magazine has published an excellent overview of the issue:

Embedded deep in H.R. 683—"The Trademark Dilution Revision Act," which awaits what may well be a last look in the U.S. House of Representatives before being signed into law by President Bush—is language that would remove key free-speech protections that have been part of U.S. trademark law since 1996.

With only the most minimal notice in the mainstream press, the bill as it currently stands would remove three exceptions from part of the present trademark law:

  • News reporting and commentary.
  • Fair use.
  • Non-commercial use.

Elimination of the news reporting and commentary protections would overnight put newspapers at much greater risk of trademark infringement actions being brought against them, for everything from a columnist's or editorial writer's ill-received reference to a company's trademark, to, say, a news photograph of a homeless person's shopping cart parked in front of a row of gleaming, readily identifiable new-model cars at the dealership of a well-known automaker.

UPDATE: Just to clarify, the language of H.R. 683 currently includes exceptions for noncommercial activities, news reporting and fair use. But under the proposed language the exceptions would only apply to dilution claims. Under the existing law, the exceptions apply to all claims under "this section." So the bill doesn't eliminate these exceptions, but narrows the kinds of claims to which the defenses apply.


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