A number of different protections are available for fictional characters under intellectual property law. These have traditionally included copyright, trademark, and unfair competition, or some combination thereof. Another avenue of protection can be found in state dilution statutes, which prohibit unauthorized uses of characters that could harm their reputations, such as by "blurring" their ability to indicate one source, or by "tarnishing" their commercial value. This harm may occur even where there is no likelihood of public confusion, and even where the use is on a noncompeting good. Many commentators have criticized state dilution theories, however, as contravening the purposes of the federal copyright law, which grants protection for limited terms only, then surrenders characters to the public domain...
The Federal Trademark Dilution Act strengthens existing protection by preventing others from using famous characters, even where no likelihood of confusion exists. This benefits the public by preventing erosion of our cultural icons, a public policy validated by both Congress and the courts. This Note explores the traditional modes of protection for fictional characters and why these are inadequate in protecting some characters. The Note then explores federal dilution as a new alternative, concluding that this added protection is needed in special cases
Tomorrow Never Dies: The Protection of Fictional Characters Under the Federal Trademark Dilution Act,
2 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol2/iss1/2