What are the Statutory Defenses to a Federal Dilution Claim?

Section 43(c) of the Lanham Act defines three defenses to a claim of dilution under the federal statute: comparative advertising, noncommercial use, and news reporting and commentary. The comparative advertising defense is conditioned on the challenged use being “fair.” For example, use of a famous mark in a purely nontrademark, descriptive sense would be fair, while altering the famous mark in an advertisement so as to lead consumers to associate undesirable characteristics with the mark would be unfair. The noncommercial use defense is intended to permit the use of a trademark in, for example, a negative product review in the media. Defendants may also raise the traditional defenses of laches, acquiescence, estoppel, and unclean hands.