Dilution and Competition Norms: The Case of Federal Trademark Dilution Claims Against Direct Competitors

This paper was drafted for a conference on Trademark Dilution held at Santa Clara Law School. It is a small part of a larger project on intellectual property as competition policy. The author argues that intellectual property law, instead of being in opposition to competition, regulates the competitive process. The author identifies four competition norms that inform intellectual property policy and analyzes how these norms can be identified in trademark dilution actions. The four norms are: (1) first mover norms, (2) controlled entry norms, (3) consumer centered norms, and (4) wealth maximization norms. Trademark law is guided by a balance of the first and third norms. The author argues that modern dilution law has favored the first norm over the third, upsetting the traditional balance in trademark law. The paper concludes with a discussion of the current case law and highlights how the balance can be restored.