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Debunking Dilution Doctrine: Toward A Coherent Theory Of The Anti-Free-Rider Principle In American Trademark Law, David Franklyn

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This Article argues that while American dilution law purports to be about preventing dilutive harm, it really is about preventing free-riding on famous marks. Because of this mismatch between dilution's stated purpose and hidden goal, it is a clumsy and largely incoherent doctrinal device. It does not allow judges to turn the anti-free-riding impulse into a carefully circumscribed set of principles with identifiable limits. This Article argues that it would be better to scrap dilution altogether and replace it with an independent cause of action that explicitly prevents free-riding in appropriate circumstances.