The CP gets rolled back on first amendment grounds

The preservation of state dilution claims may be problematic; it threatens to revive the "unpredictable" "patch-quilt" features of protection that lawmakers and trademark owners decried before enactment of the federal provision.78 Arguably, state protection will not interfere with nationwide rights, because one can expect that any nationally famous mark would be registered. Any unpredictability inherent in disuniform state regulation would, in theory, be confined to the regulation of local trade symbols. Moreover, the preemption of state dilution claims against federally registered marks may promote federal registration for all marks, especially, perhaps, for less known marks that might form the targets of state claims. Promoting federal registration enhances national uniformity and predictability in trademark law.

Finally, the federal law expression of the dilution claim adopts the "blurring" branch of dilution, but omits explicit reference to the "tarnishment" branch. The federal text, for example, unlike the state Model Bill, does not mention "injury to business reputation." Does this mean that there is no federal claim against tarnishment? And if not, do state tarnishment claims survive? It would be tempting to argue that the absence of an explicit tarnishment claim reveals Congress's intention to cut off that branch of the dilution doctrine. After all, tarnishment claims can conflict with speech interests, even if the threatened speech is often "commercial," and hence less protected. 79 Nonetheless, the legislative history suggests that Congress understood the concept of loss of distinctiveness to encompass disparagement and tarnishment.80 As a result, it would seem that, to the extent that federal dilution law can incorporate tarnishment, without running afoul of the first amendment, so, too, can state claims. By contrast, to the extent that state antidilution doctrine has not incorporated the kinds of exclusions of noncommercial speech and comparative advertising set forth in the federal statute,81 the state laws may be vulnerable to first amendment challenge. In that case, however, the new federal anti-dilution statute would not preempt the state law; rather, the state law would be set aside on constitutional grounds. Nonetheless, a comparison of the state law with the new federal law would reinforce the constitutional challenge to the state law.