The Trademark Dilution Revision Act (TDRA) of 2006 was recently passed and signed into law by President Bush. The TDRA changes many things, not the least of which is to overturn a Supreme Court trademark ruling. Perhaps the most important change to those in the golf industry is how a trademark is determined to be "famous."

The law defining what makes a mark "famous" was never clear, and the TDRA, in addition to providing that courts may consider "all relevant factors," now provides four suggested considerations in making a determination of "fame." These are 1) the duration, extent, and reach of advertising and publicity of the mark; 2) the amount, volume, and geographic extent of sales under the mark; 3) the extent of actual recognition of the mark; and 4) whether the mark was federally registered.

The TDRA also stops what had been a growing trend to accept fame within niche markets as satisfying the requirements for a famous mark. A famous mark must now be "widely recognized by the general consuming public of the United States as a designation of source." This may be a significant setback to owners of marks that are well-known in the specialty markets that they serve, but that are not well known to the public (as is often the case in the golf industry). If the value of a mark is its recognition within a specialty market, dilution could destroy a niche owner’s value in a mark without leaving any legal recourse.

Read a complete article on the subject here. Additionally, you can also listen to me discuss the topic of trademark dilution on The Small Business Advocate® radio program, hosted by Jim Blasingame, here.