In response to the Supreme Court’s decision in Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003), the Senate Judiciary Committee has unanimously approved revisions to the dilution provisions of the Lanham Act which adopt a standard of likely dilution rather than actual dilution. The following changes were also made to the dilution provisions:

  1. the “fair use” exemption was extended to the “facilitation of such fair use”;
  2. the owner of unregistered trade dress would have to prove the fame of the trade dress itself; and 
  3.  “non-commercial uses” would be expressly exempted from liability.

Trademark dilution by blurring is based on the theory that unauthorized junior uses of a "famous" trademark can diminish the mark’s ability to identify and distinguish the goods and services of its owner, regardless of whether there exists consumer confusion. Dilution by tarnishment is achieved by attaching a negative connotation to a "famous" mark.

[The Trademark Dilution Revision Act of 2005 can be found at as H.R.683 for the 109th Congress.]