This article, however, takes the view that the basic landscape in trademark law is unlikely to change in the near future. Congress has only recently enacted the Trademark Dilution Act, and there seems to be little movement to amend it dramatically, let alone repeal it. There have been several recently enacted amendments to the Lanham Act addressing functionality that make great sense and are consistent with the principles suggested here, as will be discussed below. Moreover, the Supreme Court in Two Pesos, Qualitex, Park ‘n’ Fly, and Samara has recently set forth rules that will allow trade dress claims to be asserted with considerable success. Thus, this article takes no position on the question of whether trade dress or dilution law is a good thing in principle.
Gary Myers, Statutory Interpretation, Property Rights, and Boundaries: The Nature and Limits of Protection in Trademark Dilution, Trade Dress, and Product Configuration Cases, 23 Colum.-VLA J.L. & Arts 241 (2000)