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Lux, Sarah --- "Evaluating Trade Mark Dilution from the Perspective of the Consumer" [2011] UNSWLRS 48

Last Updated: 15 December 2011

Evaluating Trade Mark Dilution from the Perspective of the Consumer

Sarah Lux, University of New South Wales

This paper is available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1972660

Citation

This article was published in UNSW Law Journal (2011), Vol. 34(3), pp.1053-1079. This article may also be referenced as [2011] UNSWLRS 48.

Abstract

Anti-dilution provisions have prompted extensive and heated debate in the countries in which they have been enacted. Dilution doctrine is condemned regularly for interfering with the rights of traders to access shared marketing language and with consumer opportunities to ‘resist, subvert, and recode’ brands and use them in personal and collective expression. Commentators have been so fiercely critical of anti-dilution law for its interference with competition and expression that it has become ‘perhaps the most vilified doctrine within contemporary trade mark law.’ Since vocal support of the doctrine has come almost exclusively from corporations that own famous marks and their representatives on the basis of the need to provide strong protection for brand investment, the debate has manifested as a dichotomy between the interests of major rights owners and those of everybody else. In more recent times, however, some scholars have suggested a more nuanced view of anti-dilution law, considering the ways in which the interests of consumers, and not just trade mark owners, might be served by this type of trade mark protection. Although this re-conceptualisation of anti-dilution law has not yet reached the mainstream, several considered arguments have been made in its favour that are worthy of discussion and evaluation. This article sets out the background against which the consumer-based justifications of anti-dilution law have emerged, and analyses each of the main consumer interest arguments that have been made in favour of the doctrine. The article concludes that, although there is merit in reconsidering the traditionally polarised nature of the dilution debate, the consumer-based justifications of anti-dilution law that have been put forward to date lack internal consistency and practical application.