Update: I read over the technicality in that was brought up in this followup at Editor & Publisher and the issue is starting to make a little more sense. The issue is that by adding the prefix "sub" to the exemptions, they have effectively removed the rest of the trademark sections from having these exemptions. I'm not a lawyer, but I have a feeling that a judge would not look kindly on someone getting sued for writing I hate Coke. I spilled some Sprite on my Dell Inspiron and now Microsoft Windows won't load. I guess I'm stuck with my MacBook. A judge very easily could be persuaded to see this bill as an attempt to circumvent the first amendment in the name of trademark protection and shut it down. Still, we ought to be vigilant. While I don't think this will end up being an issue once it hits the courts, it does bother the hell out of me that Lamar Smith pushed this through. There is no way that this could be accidental. If it was intentional, than the congresscritter needs to earn his pay and proof-read his damn bills.

We always knew that you couldn't rely on the mainstream media for accurate reporting, but the Trademark Dilution Revision Act of 2006 is a good example of why you can't always believe everything you see in the blogosphere either. I'm certainly not blaming TechDirt for overreacting to the "threat" posed by the Trademark Dilution Revision Act of 2006 (HR 683) because I fell into the same trap myself of taking Editor & Publisher seriously without doing any independent fact checking. However, I just read the text of the bill that was passed according to GovTrack, and the reality is that the bill exempts from litigation everything that was said to be subjected to litigiation by Editor & Publisher.

(3) EXCLUSIONS.--The following shall not be actionable as dilution by blurring or dilution by tarnishment under this subsection:

(A) Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services, including use in connection with--"(i) advertising or promotion that permits consumers to compare goods or services; or "(ii) identifying and parodying, criticizing, or commenting upon the famous mark owner or the goods or services of the famous mark owner.

"(B) All forms of news reporting and news commentary.

"(C) Any noncommercial use of a mark.

Now, compare that to what Editor & Publisher claimed would be the effect of this bill:

With only the most minimal notice in the mainstream press, the bill as it currently stands would remove three exceptions from part of the present trademark law:

--News reporting and commentary.

--Fair use.

--Non-commercial use.

That is a far cry from what the bill actually stipulates. We can debate the merits of the bill on other fronts, but I am not sure why this bill was actually such a big deal. Maybe a Senate version actually contains these dreaded provisions, but the house bill category rejects those in favor of maintaining the pro-free speech status quo.

I also looked up all six versions of the bill that went before Congress, and each version contained the protections in them. In fact, one of the amendments that was tacked on struck out the entire text of the legislation after the "enacting clause." I could be wrong on this, but judging from what I see on Thomas, all of the basic protections that were originally in the bill survived the amendment process and are in the final version(s) of the bill that will be heading to Bush to sign if he hasn't done so already.