Cyber-Criticism and the Federal Trademark Dilution Act: Redefining the Noncommercial Use Exemption
By Daniel Prince
Cyber-criticism websites (e.g., [trademark]sucks.com) present a problem under the Federal Trademark Dilution Acts ("FTDA") noncommercial use exemption. Though case law is thin in the area of cyber-criticism, indicators suggest that courts and commentators have erred in their analysis of cyber-criticism. Both have subscribed to the conventional belief that there is only one type of cyber-criticism. In so doing, courts have read the noncommercial use exemption too broadly, undermining the FTDA's protections. This paper identifies five types of cyber-criticism and argues that courts should distinguish those cases where cyber-criticism is used merely to criticize a famous trademark (or its holder) from those where the cyber-critic is principally free-riding off the distinctive character of a famous trademark. Ultimately, this Article proposes a model for courts to use when evaluating cyber-criticism website disputes under the FTDA's noncommercial use exemption.