Trademark law has sought to protect not just the company and the products that it produces, but consumers and their interest in purchasing a product with consistent quality. Permitting a company to take advantage of a well known product and benefit from its famous name hurts not just the company with the famous name, but the consumer who mistakenly purchases the product believing it is the famous brand. One problem lies in the fact that there are different types of consumers. There are consumers that are product savvy and would not confuse two similar products, but there are unsophisticated consumers who will undoubtedly confuse the two. An actual harm requirement hurts the unsophisticated consumer by requiring consumer confusion before the famous brand can ask for an injunction pursuant to the Federal Trademark Dilution Act.

From the time of the Industrial Revolution trademarks have been important to commerce. Marks were used to identify a manufacturer’s product and to differentiate it from other products in the market. Consumers would rely on these marks to indicate where particular products came from. Congress’s first attempt at federal trademark legislation in 1870 failed as it was declared unconstitutional by the Supreme Court in 1879. It was determined by the court that Congress was overstepping its authority granted in the commerce clause of the Constitution. Congress adopted a federal registration statute in 1881, with no mention of interstate commerce. It applied only to commerce with Indian tribes and foreign countries. Additionally, prior to 1905 it was required that the junior mark must not only bear a similar mark, but it must be in direct competition with the senior mark in order to seek an injunction.

If a consumer, who relied on a trademark as a product identifier, intended to purchase the senior mark’s product and mistakenly purchased the junior mark’s product, the senior mark lost profits and the consumer purchased something they did not intend to purchase.