[Congressional Record Volume 141, Number 211 (Friday, December 29, 1995)]
[Senate]
[Pages S19306-S19311]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. McCONNELL (for himself, Mr. Moynihan, Mr. D'Amato, and Mr. 
        Leahy):
  S. 1511. A bill to impose sanctions on Burma; to the Committee on 
Banking, Housing, and Urban Affairs.


              The Burma Freedom and Democracy Act of 1995

  Mr. McCONNELL. Mr. President, I rise today with Senators Moynihan, 
D'Amato, and Leahy to introduce the Burma Freedom And Democracy Act of 
1995.
  Early in December, prospects for democracy in Burma took a turn for 
the 

[[Page S19307]]
worse. In a remarkable act of courage, Aung San Suu Kyi and her 
colleagues in the National League for Democracy decided not to 
participate in the National Convention orchestrated by the State Law 
and Order Restoration Council. In announcing her decision she said, ``A 
country which is drawing up a constitution that will decide the future 
of the state should have the confidence of the people.'' This is a 
standard that SLORC cannot meet.
  Burma is not one step closer to democracy today than it was in the 
immediate aftermath of the crackdown in 1988. Indeed, in Aung San Suu 
Kyi's own words, ``I have been released, that is all.''
  In fact, the situation continues to deteriorate. A recent report 
filed by the U.N. Special Rapporteur on Burma, Dr. Yokota, is a fresh, 
sharp reminder of the level of despair and the brutality suffered by 
the people of Burma at the hands of SLORC.
  In lengthy remarks on December 8, I reviewed for my colleagues in 
detail the Yokota report. Let me take a moment to briefly review its 
most recent conclusions.
  Virtually no improvements have occurred since the spring report of 
the Special Rapporteur. Dr. Yokota reported that the National 
Convention ``is not heading towards restoration of democracy'' and 
criticized SLORC for not affording him the opportunity to meet with 
convention participants free from SLORC supervision.
  But, those criticisms were mild compared to his determinations with 
regard to human rights and the quality of life for the average Burmese 
citizen.
  A complex array of security laws are used to harass, intimidate, and 
afford SLORC soldiers sweeping powers of arrest and detention. He 
charged the military with carrying out arbitrary killings, rape, 
torture, forced porterage, forced labor, forced relocations, and 
confiscation of private property. He substantiated many refugee claims 
that this pattern of abuse continues most frequently ``in border areas 
where the Army is engaged military operations or where regional 
development projects are taking place.'' He added, ``many of the 
victims of such atrocious acts belong to ethnic national populations, 
especially women, peasants, daily wage earners and other peaceful 
civilians who do not have enough money to avoid mistreatment by 
bribing.''
  If anyone had any doubts about the ruthless nature of the SLORC 
regime, I encourage them to take a few minutes to read this report.
  SLORC has now turned its attention to the rising influence of Suu Kyi 
and her supporters. SLORC has cynically used the fact of her release to 
attempt to demonstrate they are relaxing their grip on power. 
Unfortunately, it is a sadistic charade.
  Although Suu Kyi has repeatedly called for a dialog to reconcile the 
nation, SLORC has rejected every attempt to include her or the NLD in a 
credible political process. Last week Suu Kyi was personally attacked 
in the official newspapers as a ``traitor'' who should be 
``annihilated.'' When the NLD announced they would not participate in 
the National Convention, senior officials woke up to find their homes 
surrounded by soldiers and their movements shadowed by military thugs.
  In response to this assault on democracy and democratic activities, 
members of the business community have made two arguments. First, the 
allegations are exaggerations of the conditions. And, second, trade, 
investment, and economic improvements will yield political progress 
just as it has in China and Vietnam.
  Mr. President, I urge the business community to read Dr. Yokota's 
recent report and then consider an important difference in Burma. In 
1990 elections were held and the nation spoke with a strong voice. Suu 
Kyi's National League for Democracy swept the elections only to find 
the results brutally rejected by SLORC. We cannot pretend those 
elections did not occur. We cannot turn our back on the legitimate 
Government of Burma. We should not trade democracy for dollars in the 
pockets of a few companies interested in investing in Burma.
  Suu Kyi has been absolutely clear. She will welcome foreign 
investment in her country just as soon as it makes real progress toward 
democracy.
  The United States must take the lead in supporting not only her 
courage but her objective which is nothing short of Burma's liberty. It 
is clear U.N. Ambassador Albright understands the importance of our 
role and the responsibilities of United States leadership in securing 
democracy for Burma. In responding to the U.N. Rapporteur's report and 
the subsequent General Assembly resolution she spelled out the 
alternatives for SLORC: They must--there must be prompt and meaningful 
progress in political reforms including a transition to an elected 
Government or Burma will face further international isolation.
  Mr. President, I agree with the Ambassador's conclusions. However, it 
is a position that the administration has expressed for more than a 
year. My definition of prompt differs from the administration's 
timetable. SLORC has had ample time and opportunity to demonstrate 
their intent to in effect return to the barracks and leave the 
governing of the country to democratically elected civilians. Burma 
waited for decades to vote for the National League for Democracy. They 
have waited for the past five years to benefit from the results of that 
election. Burma has waited for its freedom long enough.

  In past statements of Burma I have devoted a good deal of my remarks 
to why a country so far away should matter to anyone here in the United 
States. It is not just a matter of upholding the principles of 
democracy and free markets--principles that define our history and 
national conscience. But, for many, those are ideals that are difficult 
to transplant--it is difficult to see why we should apply sanctions to 
further that cause.
  The reason it is in our direct interest to secure democracy in Burma 
relates to the surge in narcotics trafficking afflicting every 
community in this Nation. Burma is the source of more than 60 percent 
of the heroin coming into the United States. As the Assistant Secretary 
of State for Asian Affairs has testified, until there is a 
democratically elected government in Rangoon, committed to a similar 
set of values, we will not see the active cooperation necessary to 
bring a real halt to this problem. We may see episodic efforts 
designed--like Suu Kyi's release--to influence our perceptions of 
SLORC's intentions. But, we will not see a serious effort to eradicate 
opium production unless we can work with a government dedicated to our 
common agenda.
  The credibility of a counternarcotics program directly relates to the 
credibility of the government.
  Let me conclude by thanking Senators Moynihan, Leahy, and D'Amato for 
joining me in this legislation. I appreciate my colleague on the 
Subcommittee on Foreign Operations joining me in this important effort. 
I understand the Parliamentarian has decided that this will be referred 
to the Banking Committee, so I am grateful for the cosponsorship of the 
chairman, Senator D'Amato.
  But, I want to take a moment to single out Senator Moynihan and his 
long standing commitment to Suu Kyi's safe return to public life. When 
we were members of the Senate Foreign Relations Committee in 1992 
Senator Moynihan and I worked together to establish conditions which 
must be met prior to our dispatching a U.S. Ambassador to Burma. Then 
as now, he has been articulate champion for a noble cause.
 Mr. MOYNIHAN. Mr. President, the Senator from Kentucky and I 
join together to propose a modest measure in response to a continued 
pattern of egregious abuses of power by the Burmese military junta, the 
State Law and Order Restoration Council [SLORC]. The members of SLORC 
have worked to thwart democracy at every turn. They continue to be 
implicated in drug trafficking, and they continue to abuse the people 
of Burma in a manner that can only be characterized as inhuman.
  This bill makes clear our intention that such a regime will no longer 
enjoy investments from the United States. Investments which so often 
supported--knowingly or unknowingly--its totalitarian and abusive rule. 
The bill also codifies our intention to withhold our support for loans 
to Burma from international financial institutions, to prevent direct 
assistance to the SLORC, and to exclude the members of SLORC from the 
United States.

[[Page S19308]]

  In 1988 the Burmese people took to the streets of Rangoon, to 
demand democracy for their country. Sadly, government forces turned 
peaceful protests into violent tragedy. In September of that year, 
thousands of unarmed demonstrators were killed by government troops.

  Since then, the SLORC has earned its reputation as one of the worst 
violators of human rights in the world. The Department of State and 
numerous human rights organizations document this. The SLORC maintains 
power through violence and intimidation. In effect, the military junta 
has waged war against its own people. But the will of the Burmese 
people cannot be squelched. As they continue their fight for democracy, 
support from the international community remains steadfast.
  The SLORC came to power through violence, but it must have cynically 
imagined that a rigged election would be the answer to its untenable 
political situation, and one was scheduled for May 1990. The National 
League for Democracy [NLD] party, led by Aung San Suu Kyi, won that 
election while she was under house arrest. Yet the SLORC has never 
allowed the elected leaders of Burma to take office. Instead it has 
forced these leaders to flee their country to escape arrest and death.
  The U.S. Senate has spoken often in support of those brave Burmese 
democracy leaders. We have withheld aid and weapons to the military 
regime, and have provided some--albeit modest amounts--of assistance to 
the Burmese refugees who have fled the ruthless SLORC. Pro-democracy 
demonstrators were particularly vulnerable, yet having fled the country 
they found themselves denied political asylum by Western governments. 
In 1989, Senator Kennedy and I rose in support of the demonstrators and 
won passage of an amendment to the Immigration Act of 1990 requiring 
the Secretary of State and the Attorney General to define clearly the 
immigration policy of the United States toward Burmese pro-democracy 
demonstrators. Congress acted again on the Customs and Trade Act of 
1990 to adopt a provision I introduced requiring the President to 
impose appropriate economic sanctions on Burma. The Bush administration 
utilized this provision to sanction Burmese textiles. Unfortunately, 
these powers have never been exercised by the current administration.
  The Senate continued to press for stronger actions. On March 12, 
1992, the Foreign Relations Committee unanimously voted to adopt a 
report which Senator McConnell and I submitted detailing specific 
actions that should be taken before the nomination of a United States 
Ambassador to Burma would be considered by the Senate.
  Last year, the State Department authorization act for 1994-1995 
contained a provision I introduced placing Burma on the list of 
international outlaw states such as Libya, North Korea, and Iraq. Let 
us be clear: The U.S. Congress considers the SLORC regime to be one of 
the very worst in the world. The Senate also unanimously adopted S. 234 
on July 15, 1994, calling for the release of Aung San Suu Kyi and for 
increased international pressure on the SLORC to achieve the transfer 
of power to the winners of the 1990 Democratic election.
  After 6 years of unjust detention by the Burmese military, Nobel 
Peace Prize Laureate Aung San Suu Kyi was released on July 10, 1995. 
While this was cause for celebration and great relief for those of us 
who have long called for her release, one cannot fail to stress that 
there is also great outrage that she was incarcerated in the first 
instance.
  The struggle in Burma is not over. The SLORC continues to wage war 
against its own people. Illegal heroin continues to be produced with 
the junta's complicity. And the SLORC continues to thwart the transfer 
to democracy in Burma. The New York Times writes appropriately in an 
editorial:

       The end of Ms. Aung San Suu Kyi's detention must be 
     followed by other steps toward democracy before Myanmar is 
     deemed eligible for loans from multilateral institutions or 
     closer ties with the United States. It is too soon to welcome 
     Yangon back into the democratic community.

  Too soon indeed.
                                 ______

      By Mr. LUGAR (for himself and Mr. Coats):
  S. 1512. A bill to amend title 23, United States Code, to improve 
safety at public railway-highway crossings, and for other purposes; to 
the Committee on Environment and Public Works.


 THE HIGHWAY RAIL GRADE CROSSING SAFETY FORMULA ENHANCEMENT ACT OF 1995

 Mr. LUGAR. Mr. President, today I am introducing the Highway 
Rail Grade Crossing Safety Formula Enhancement Act. This important 
legislation will provide a more effective method of targeting available 
Federal funds to enhance safety at our Nation's most dangerous highway 
rail grade crossings.
  In America today, several hundred people are killed and thousands 
more injured every year as a result of vehicle-train collisions at 
highway rail grade crossings. A significant number of these accidents 
occur in rail-intensive States such as Indiana, Illinois, Ohio, 
California, and Texas. One quarter of the Nation's 168,000 public 
highway rail grade crossings are located in these five States. They 
accounted for 38 percent of deaths and 32 percent of injuries caused by 
vehicle-train collisions nationwide during 1991-93.
  My home State of Indiana ranks sixth in the Nation for number of 
total grade crossings with 6,788, third in the Nation for grade 
crossing accidents with 263, and fifth for fatalities with 27. Last 
year, I traveled across northern Indiana aboard a QSX-500 locomotive 
and witnessed what engineers see every day--motorists darting across 
the railroad tracks before an oncoming train. From this experience, and 
from my work to improve safety at highway-rail grade crossings, I 
learned that engineering solutions, along with education and awareness 
about grade crossing safety are key strategies that can effectively 
prevent grade crossing accidents.
  Responding to this disturbing national trend, I began working with 
Transportation Secretary Federico Pena and with the Indiana Department 
of Transportation to address this serious safety problem. We worked to 
find solutions that would help Indiana and other States make better use 
of available funds to target the Nation's most dangerous rail 
crossings.
  The Federal Government has played an important role in helping States 
reduce accidents and fatalities at public rail-highway intersections 
since passage of the Highway Safety Act by Congress in 1973. This act 
created the Rail-Highway Crossing Program--also known as the section 
130 program. Since the program's inception, more than 28,000 
improvement projects have been undertaken--from installation of warning 
gates, lights, and bells, to pavement improvements and grade separation 
construction projects.
  During the 103d Congress, I introduced grade crossing safety 
legislation to restore States' discretion over millions of Federal 
highway dollars lost as a result of noncompliance with the Federal 
motorcycle helmet law. Indiana and other States affected by this law 
were prohibited from using a portion of their highway construction 
dollars to improve safety at highway rail grade crossings. While the 
Senate did not approve this legislation during the 103d Congress, I am 
pleased the Congress repealed the helmet law penalty this year as part 
of the National Highway System Designation legislation. Repeal of this 
Federal sanction allows States greater flexibility to use their Federal 
highway dollars for improvements at rail crossings, and for other 
transportation priorities.
  In March, 1994, Senator Coats and I asked the General Accounting 
Office to conduct a survey of rail safety programs in Indiana and other 
rail intensive States experiencing a high number of accidents at 
highway-rail grade crossings. Released this summer, the report--
``Railroad Safety: Status of Efforts to Improve Railroad Crossing 
Safety''--evaluated the best uses of limited Federal funds for rail 
crossing safety, reviewed policy changes that help State and local 
governments address rail safety issues, and recommended strategies to 
encourage interagency and intergovernmental cooperation.
  The report found that in addition to States' efforts to reduce 
accidents and fatalities through emphasis on education programs and 
engineering solutions, changes to the funding formulas to apportion 
highway funds among States would target Federal funds to areas of 
greatest risk.

[[Page S19309]]

  Under the Intermodal Surface Transportation Efficiency Act of 1991 
[ISTEA], the section 130 program was continued as part of the Surface 
Transportation Program [STP]. Under ISTEA, 10 percent of a State's 
apportioned STP funds are allocated to States for highway rail crossing 
improvement and hazard elimination projects.
  The GAO reported that key indicators of risk factors used to assess 
rail grade crossing safety in a State are not considered during the 
apportionment process. The GAO outlined the Federal Highway 
Administration's ongoing efforts to review options for STP formula 
changes that will adjust the current flat percentage allocation from a 
State's apportioned amount to account for these risk factors. Applying 
these factors to the funding formula creates a more targeted and 
focused process that maximizes the effectiveness of Federal funds.
  The risk factors criteria considered includes a State's share of the 
national total for number of public crossings, number of public 
crossings with passive warning devices, total number of accidents and 
total number of fatalities occurring as a result of vehicle-train 
collisions at highways rail grade crossings.
  For example, while Indiana received 3.4 percent of section 130 funds 
in fiscal year 1995, the Hoosier State experienced 6.1 percent of the 
Nation's accidents and 5.9 percent of the fatalities as a result of 
vehicle-train collisions from 1991-93. In addition, Indiana has 4 
percent of the Nation's public rail crossings: 6,788.
  Preliminary estimates of STP apportionments under this legislation 
indicate Indiana's share of section 130 funds could increase by 33 
percent, from the fiscal year 1995 level of $4.9 million to $6.6 
million. Overall, about 24 States would receive an increase in section 
130 funds for grade crossing improvements.
  The GAO cited similar statistical comparisons for Illinois, Ohio, and 
Texas.
  While the Indiana Department of transportation [INDOT] spent more 
than $10 million last year on improvements to highway rail grade 
crossings, a one-third increase in section 130 funds would allow INDOT 
and other State departments of transportation additional flexibility 
and resources to improve safety at dangerous rail crossings.
  The Formula Enhancement Act addresses the allocation problem by 
adjusting the funding formula for the STP to include a 5-percent 
apportionment of funds to States for the section 130 program based on a 
3-year average of these risk factors. The FHWA has been helpful in 
preparing this legislation, and I want to express my appreciation to 
them for their assistance.
  This legislation will help improve the way the Federal Government 
targets existing resources to enhance safety on our Nation's highways 
and along our rail corridors. This legislation does not call for new 
Federal spending, but rather for a more equitable and effective 
distribution of existing highway funds to States to enhance safety at 
dangerous highway rail grade crossings.

  I am introducing this measure today anticipating congressional 
consideration next year of a reauthorization bill to succeed the ISTEA 
which expires after fiscal year 1997. With the many changes occurring 
in the 104th Congress, it is unclear what direction the next highway 
authorization bill will take or what the Federal role will be in 
maintaining the national transportation infrastructure. I wanted to 
share with my colleagues my interest in ensuring that highway rail 
grade crossing safety will be a part of these deliberations. I am 
hopeful highway rail grade crossing safety improvement efforts will 
continue in rail intensive States and in other States where accidents 
and fatalities continue to occur a result of vehicle-train collisions.
  I am hopeful this legislation will reinforce the importance of 
highway rail grade crossing safety issues as the Congress moves forward 
with the national discussion of U.S. transportation policy for the 21st 
century. I believe continued emphasis on finding new and better ways to 
maximize existing resources that enhance safety at highway rail grade 
crossings will contribute to the overall effort in Congress and in the 
States to prevent accidents, save lives and sustain a balanced and 
effective transportation network for the Nation.
 Mr. COATS. Mr. President, the bill which Senator Lugar and I 
are introducing today will help correct a critical deficiency and help 
prevent senseless, tragic accidents at rail grade crossings.
  Indiana is one State which suffers from high numbers of accidents and 
deaths at railroad crossings. Rail transportation is important in 
Indiana, playing a key role in the State's agriculture and 
manufacturing economy. Much of the rail activity goes through northwest 
Indiana which accounts for 75 percent of the State's rail crossing 
accidents. In 1994, Indiana ranked third in the Nation with 263 rail 
crossing accidents, resulting in the deaths of 27 people; 6.1 percent 
of all rail crossing accidents in America took place in Indiana and 5.9 
percent of the fatalities occurred there.
  As Senator Lugar and I became aware that Indiana had a critical 
problem with rail accidents, we asked the General Accounting Office 
[GAO] to examine the safety conditions in States with a high 
concentration of rail crossings. When the GAO report was completed in 
August 1995, it revealed that although Indiana had a large number of 
rail crossings--6,700, the sixth largest number of all States--the 
State received only 3.4 percent of the Federal funding available 
specifically targeted to prevent such tragedies.
  The section 130 program was established in 1973 to help States reduce 
accidents, injuries, and fatalities at public railroad crossings. In 
the first 10 years of the program, accidents declined by 61 percent and 
deaths were reduced by 34 percent. Since 1985, however, there has been 
little progress made toward further reducing these numbers.
  The problem becomes apparent when you realize that many of the States 
with the highest concentration of crossings, number of accidents, and 
fatalities receive less money than States which do not have as great a 
need. Thus, the GAO concluded that the Federal Government should 
examine funding formulas and consider using risk factors in determining 
how to distribute section 130 highway dollars to States for rail safety 
purposes.
  The current formula funding--based on 10 percent of a State's surface 
transportation program [STP] funding--does not take into account such 
essential criteria as a State's total number of crossings, amount of 
train traffic, as well as the number of accidents and fatalities. I 
believe it is critical that these elements--risk factors--be 
considered in determining how much money a State should receive for 
rail safety.

  The formula enhancement bill corrects this flaw in the current 
funding formula. Based on the GAO report and working with the Federal 
Highway Administration, we have crafted legislation which changes the 
formula in way to ensure that States with the greatest risk receive 
more funding. This bill does not increase Federal spending in any way. 
Rather it ensures that current spending on rail safety under section 
130 is done more effectively. Specifically, it sets aside 5 percent of 
the total apportionment for surface transportation program funding and 
directs it to the States based on the total number of accidents, total 
number of fatalities, number of public railway highway crossings, and 
number of passive warning devices.
  Under this new formula, Indiana--which received $4.9 million in 
1995--could receive $6.6 million. Overall, 24 States would benefit from 
increased funding to help reduce rail crossing accidents.
  It is our goal to work with the Committee on Environment and Public 
Works to help ensure that this formula change is considered as part of 
Intermodal Surface Transportation Efficiency Act reauthorization when 
it occurs either next year or in 1997.
  Money alone will not solve all the problems related to rail crossing 
accidents. I support greater education programs such as Operation 
Lifesaver. Continued cooperation among all levels of government: local, 
State, and Federal is essential to stop these sort of tragedies. 
However, we should also ensure that a Federal program which was 
designed to help States with safety issues at rail crossings is 
targeted in a 

[[Page S19310]]
way which ensures the most effective use of these resources.
  It is time for us to direct this program where it has the best hope 
of making an impact and thus reduce the senseless accidents and tragic 
deaths at rail crossings.
                                 ______

      By Mr. HATCH:
  S. 1513. A bill to amend the Trademark Act of 1946 to make certain 
revisions relating to the protection of famous marks; to the Committee 
on the Judiciary.


                   the federal trademark dilution act

  Mr. HATCH. Mr. President, I am very pleased to introduce today the 
Federal Trademark Dilution Act of 1995.
  Mr. President, this bill is designed to protect famous trademarks 
from subsequent uses that blur the distinctiveness of the mark or 
tarnish or disparage it, even in the absence of a likelihood of 
confusion. Thus, for example, the use of DuPont shoes, Buick aspirin, 
and Kodak pianos would be actionable under this bill.
  The concept of dilution dates as far back as 1927, when the Harvard 
Law Review published an article by Frank I. Schecter in which it was 
argued that coined or unique trademarks should be protected from the 
``gradual whittling away of dispersion of the identity and hold upon 
the public mind'' of the mark by its use on noncompeting goods. Today, 
25 States have laws that prohibit trademark dilution.
  A Federal dilution statute is necessary, Mr. President, because 
famous marks ordinarily are used on a nationwide basis and dilution 
protection is only available on a patchwork system of protection. 
Further, some courts are reluctant to grant nationwide injunctions for 
violation of State law where half of the States have no dilution law. 
Protection for famous marks should not depend on whether the forum 
where suit is filed has a dilution statute. This simply encourages 
forum-shopping and increases the amount of litigation.
  Moreover, Mr. President, the GATT agreement includes a provision 
designed to provide dilution protection to famous marks. Thus, 
enactment of this bill will be consistent with the terms of the 
agreement, as well as the Paris Convention, of which the United States 
is also a member. Passage of a Federal dilution statute, Mr. President, 
would also assist the executive branch in its bilateral and 
multilateral negotiations with other countries to secure greater 
protection for the famous marks owned by U.S. companies. Foreign 
countries are reluctant to change their laws to protect famous U.S. 
marks if the United States does not afford special protection for such 
marks.
  Mr. President, as many Members will recall, a Federal dilution 
statute was proposed as part of the comprehensive trademark reform 
package that was enacted into law in November 1988, and took effect 1 
year later. The comprehensive bill initially passed by the Senate 
included the dilution provision. However, the dilution proposal was 
deleted from the bill prior to final congressional passage. The current 
proposal, I believe, eliminates any concerns previously voiced in 
congressional hearings regarding the former Federal dilution provision.
  Mr. President, the bill I am introducing today is the product of 
years of consideration and the study by Congress and various experts in 
this field, including the International Trademark Association, formerly 
the United States Trademark Association. It would amend section 43 of 
the Trademark Act to add a new subsection (c) to provide protection 
against another's commercial use of a famous mark which results in the 
dilution of such mark. The bill defines the term ``dilution'' to mean 
``the lessening of the capacity of registrant's mark to identify and 
distinguish goods and services regardless of the presence or absence of 
(a) competition between the parties, or (b) likelihood of confusion, 
mistake, or deception.''

  The proposal adequately addresses legitimate first amendment concerns 
espoused by the broadcasting industry and the media. The bill will not 
prohibit or threaten noncommercial expression, such as parody, satire, 
editorial and other forms of expression that are not a part of a 
commercial transaction. The bill includes specific language exempting 
from liability the ``fair use'' of a mark in the context of comparative 
commercial advertising or promotion.
  The legislation sets forth a number of specific criteria in 
determining whether a mark has acquired the level of distinctiveness to 
be considered famous. These criteria include: First, the degree of 
inherent or acquired distinctiveness of the mark; second, the duration 
and extent of the use of the mark; and third, the geographical extent 
of the trading area in which the mark is used.
  With respect to remedies, the bill limits the relief a court could 
award to an injunction unless the wrongdoer willfully intended to trade 
on the registrant's reputation or to cause dilution, in which case 
other remedies under the Trademark Act become available. The ownership 
of a valid Federal registration would act as a complete bar to a 
dilution action brought under State law.
  Mr. President, the Judiciary Committee, which I chair, looks forward 
to working with all interested parties to secure enactment of a Federal 
dilution statute that adequately meets the needs of trademark owners 
and is consistent with the public interest.
  I ask unanimous consent that the text of the bill and a section-by-
section analysis be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1513

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Federal Trademark Dilution 
     Act of 1995''.

     SEC. 2. REFERENCE TO THE TRADEMARK ACT OF 1946.

       For purposes of this Act, the Act entitled `'An Act to 
     provide for the registration and protection of trademarks 
     used in commerce, to carry out the provisions of certain 
     international conventions, and for other purposes'', approved 
     July 5, 1946 (15 U.S.C. 1051 and following), shall be 
     referred to as the ``Trademark Act of 1946''.

     SEC. 3. REMEDIES FOR DILUTION OF FAMOUS MARKS.

       (A) Remedies.--Section 43 of the Trademark Act of 1946 (15 
     U.S.C. 1125) is amended by adding at the end the following 
     new subsection:
       ``(c)(1) The owner of a famous mark shall be entitled, 
     subject to the principles of equity and upon such terms as 
     the court deems reasonable, to an injunction against another 
     person's commercial use in commerce of a mark or trade name, 
     if such use begins after the mark becomes famous and causes 
     dilution of the distinctive quality of the famous mark, and 
     to obtain such other relief as is provided in this 
     subsection. In determining whether a mark is distinctive and 
     famous, a court may consider factors such as, but not limited 
     to--
       ``(A) the degree of inherent or acquired distinctiveness of 
     the mark;
       ``(B) the duration and extent of use of the mark in 
     connection with the goods or services with which the mark is 
     used;
       ``(C) the duration and extent of advertising and publicity 
     of the mark;
       ``(D) the geographical extent of the trading area in which 
     the mark is used;
       ``(E) the channels of trade for the goods or services with 
     which the mark is used;
       ``(F) the degree of recognition of the mark in the trading 
     areas and channels of trade of the mark's owner and the 
     person against whom the injunction is sought;
       ``(G) the nature and extent of use of the same or similar 
     marks by third parties; and
       ``(H) the existence of a registration under the Act of 
     March 3, 1881, or the Act of February 20, 1905, or on the 
     principal register.
       ``(2) In an action brought under this subsection, the owner 
     of a famous mark shall be entitled only to injunctive relief 
     unless the person against whom the injunction is sought 
     willfully intended to trade on the owner's reputation or to 
     cause dilution of the famous mark. If such willful intent is 
     proven, the owner of a famous mark shall also be entitled to 
     the remedies set forth in sections 35(a) and 36, subject to 
     the discretion of the court and the principles of equity.
       ``(3) The ownership by a person of a valid registration 
     under the Act of March 3, 1881, or the Act of February 20, 
     1905, or on the principal register shall be a complete bar to 
     an action against that person, with respect to that mark, 
     that is brought by another person under the common law or 
     statute of a State and that seeks to prevent dilution of the 
     distinctiveness of a mark, label, or form of advertisement.
       ``(4) The following shall not be actionable under this 
     section:
       ``(A) Fair use of a famous mark by another person in 
     comparative commercial advertising or promotion to identify 
     the competing goods or services of the owner of the famous 
     mark.
       ``(B) Noncommercial use of a mark.
       ``(C) All forms of news reporting and news commentary.''.
       
[[Page S19311]]

       (b) Conforming Amendment.--The heading for title VIII of 
     the Trademark Act of 1946 is amended by striking ``AND FALSE 
     DESCRIPTIONS'' and inserting ``FALSE DESCRIPTIONS, AND 
     DILUTION''.

     SEC. 4. DEFINITION.

       Section 45 of the Trademark Act of 1946 (15 U.S.C. 1127) is 
     amended by inserting after the paragraph defining when a mark 
     shall be deemed to be ``abandoned'' the following:
       ``The term `dilution' means the lessening of the capacity 
     of a famous mark to identify and distinguish goods or 
     services, regardless of the presence or absence of--
       ``(1) competition between the owner of the famous mark and 
     other parties, or
       ``(2) likelihood of confusion, mistake, or deception.''.

     SEC. 5. EFFECTIVE DATE.

       This Act and the amendments made by this Act shall take 
     effect on the date of the enactment of this Act.
                                                                    ____


 Section-by-Section Analysis of the Federal Trademark Dilution Act of 
                                  1995

       Section 1. Section one of the bill provides the short title 
     of the bill, the ``Federal Trademark Dilution Act of 1995.''
       Section 2. Section 2 of the bill clarifies the references 
     in the bill to the ``Trademark Act of 1946,'' giving the full 
     title of the law and statutory citations.
       Section 3. Section 3 of the bill would create a new Section 
     43 of the Lanham Act to provide a cause of action 
     for dilution of ``famous'' marks. A new Section 43(c)(1) 
     would provide protection to the owners of famous marks 
     against another person's commercial use in commerce of the 
     mark which dilutes the distinctive quality of the mark. The 
     section would provide protection to famous marks, whether or 
     not the mark is the subject of a federal trademark 
     registration.
       Section 3 identifies a list of nonexclusive factors that a 
     court may consider in determining whether a mark qualifies 
     for protection. These factors include: (1) the degree of 
     distinctiveness of the mark; (2) the duration and extent of 
     use of the mark; (3) the geographical extent of the trading 
     area in which the mark is used; and (4) whether the mark is 
     federally registered.
       With respect to relief, a new Section 43(c)(2) of the 
     Lanham Act would provide that, normally, the owner of a 
     famous mark will only be entitled to an injunction upon a 
     finding of liability. An award of damages, including the 
     possibility of treble damages, may be awarded upon a finding 
     that the defendant willfully intended to trade on the 
     trademark owner's reputation or to cause dilution of the 
     famous mark.
       Under section 3 of the bill, a new Section 43(c)(3) of the 
     Lanham Act would provide that ownership of a valid federal 
     trademark registration is a complete bar to an action brought 
     against the registrant under state dilution law. In this 
     regard, it is important to note that the proposed federal 
     dilution statute would not preempt state dilution laws.
       A new Section 43(c)(4) sets forth various activities that 
     would not be actionable. These activities include the use of 
     a famous mark for purposes of comparative advertising, the 
     noncommercial use of a famous mark, and the use of a famous 
     mark in the context of news reporting and news commentary. 
     This section is consistent with existing case law. The cases 
     recognize that the use of marks in certain forms of artistic 
     and expressive speech is protected by the First Amendment.
       Section 4. Section 4 of the bill defines the term 
     ``dilution'' to mean the lessening of the capacity of a 
     famous mark to identify and distinguish goods or services, 
     regardless of the presence or absence of (1) competition 
     between the owner of the famous mark and other parties, or 
     (2) likelihood of confusion, mistake, or deception. The 
     definition is designed to encompass all forms of dilution 
     recognized by the courts, including disparagement. In an 
     effort to clarify the law on the subject, the definition also 
     recognizes that a cause of action for dilution may exist 
     whether or not the parties market the same or related goods 
     and whether or not likelihood of confusion exists.
       Section 5. Section 5 of the bill makes the legislation 
     effective upon enactment.

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