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46 Hofstra Law Review 669 (2017)


This article is an explication of the trend toward commodification of famous or putatively famous trademarks and the resultant urging that the FTDA be repealed. This article starts with a literature review showing that the vast majority of commentators have been severely critical of the FTDA. This has been ignored by Congress. The article next pursues Congress's blind support of the FTDA and suggests that more thought and analysis from Congress is still required. The article next explains the data regarding FTDA claims. All reported cases from 1996 through 2015 are coded and examined. The conclusion, looking at the data, is that the FTDA cause of action is going away. It has been rarely used in enforcement actions, it is much less likely to be successful than other trademark litigation, and the downward trend of enforcement continues. Finally, the article considers commodification of trademarks and how we are all negatively impacted by it.