State Anti-Dilution Statutes Under the Pre-emption Analyses of Gade v. National Solid Wastes Management Ass'n

Journal of Intellectual Property Law Volume 3 | Issue 1 Article 5 October 1995 State Anti-Dilution Statutes Under the Preemption Analyses of Gade v. National Solid Wastes Management Ass'n George G. Boyd Jr. Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation George G. Boyd Jr., State Anti-Dilution Statutes Under the Pre-emption Analyses of Gade v. National Solid Wastes Management Ass'n, 3 J. Intell. Prop. L. 135 (1995). Available at: https://digitalcommons.law.uga.edu/jipl/vol3/iss1/5 This Notes is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Boyd: State Anti-Dilution Statutes Under the Pre-emption Analyses of Ga NOTES STATE ANTI-DILUTION STATUTES UNDER THE PRE-EMPTION ANALYSES OF GADE V. NATIONAL SOLID WASTES MANAGEMENT ASS'N INTRODUCTION In 1992, the Supreme Court, in Gade v. National Solid Wastes Management Ass'n, held that Illinois law, which provided for the training, testing and licensing of hazardous waste site workers, was pre-empted by the federal Occupational Safety and Health Act (hereinafter OSH Act).1 While the decision to pre-empt commanded a majority of the court, the majority did not agree on the grounds for pre-emption.2 The plurality argued for implied pre-emption.3 The concurrence argued for express pre-emption. 4 The competing pre-emption viewpoints expressed by the members of the Court create an extremely interesting tension. Four justices held for implied pre-emption based on an extremely expansive implied intention inquiry.5 One justice held that the language of the federal OSH Act expressly pre-empted the state statute. 6 But, five justices, combining the concurrence and dissenters, held that there was no direct conflict between the state legislation and the federal Act.7 1 Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 108 (1992). 2The plurality consisted of J. O'Connor (writing), C.J. Rehnquist, J. White, and J. Scalia. J. Kennedy concurred, basing his finding of pre-emption only on express grounds. 3 Gade, 505 U.S. at 108-09 (J. Kennedy, concurring in part and concurring in judgment). 4 Id. at 109. 5Id. at 98-99. 6 Id. at 109. 'Id. at 110, 115. 135 Published by Digital Commons @ Georgia Law, 1995 1 Journal of Intellectual Property Law, Vol. 3, Iss. 1 [1995], Art. 5 J. INTELL. PROP.L. 136 [Vol. 3:135 Justice Kennedy provided the swing vote. Although he found no conflict between the state and federal laws, he found express preemption based on an expansive, holistic reading of the statute.' Of especial interest is Kennedy's observation that in the absence of express pre-emption, the states should be allowed to supplement existing federal regulation.9 This observation raises interesting questions under the Lanham Act, which many commentators currently understand as providing only a floor of federal regulation.10 The Court stated that the divination of Congressional intent was of primary importance in implied pre-emption analysis.11 The plurality looked not only to the language and structure of the OSH Act to find this intent, but also to its legislative history.12 The broad reach of the implied pre-emption analysis, looking to legislative history, exposes state anti-dilution statutes to a new attack. The purpose of this Note is to assess state anti-dilution statutes' ability to withstand pre-emption analysis under the framework established in Gade. The discussion will first detail the method of analysis applied by the Supreme Court in Gade. The goal of this initial investigation is to extract the analytical framework from the OSH Act context. The discussion will then proceed to an overview of the development and content of anti-dilution statutes. Finally, the pre-emption framework derived from Gade will be applied to the state antidilution statutes. PLURALITY AND CONCURRENCE IN GADE The state of Illinois enacted statutes in 1988 governing the licensing of hazardous waste equipment operators. 3 The laws a Gade, 505 U.S. at 109-14. Id. at 110-11. 10 David S. Welkowitz, Preemption, Extraterritoriality, and the Problem of State Antidilution Laws, 67 TuL. L. REV. 1, 8 (1992). "Gade, 505 U.S. at 96 (quotingAilis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985)). "Id. at 100-02. "Hazardous Waste Equipment Operators and Laborers Act, ILL. ANN. STAT. ch. 225, para. 220(1)-(17) (Smith-Hurd 1993) (formerly ILL. REV. STAT. ch. 111, para. 7701-17 (1991)) and Hazardous Waste Laborers Licensing Act, ILL. ANN. STAT. ch. 225, para. 221(1)-(15) (Smith-Hurd 1993) (formerly ILL. REV. STAT. ch. 111, para. 7801-15 (1991)). https://digitalcommons.law.uga.edu/jipl/vol3/iss1/5 2 Boyd: State Anti-Dilution Statutes Under the Pre-emption Analyses of Ga 19951 STATE ANTI-DILUTION STATUTES established stringent standards such as 4,000 hours minimum experience working with the equipment used for the handling of hazardous waste. 14 The state justified the measures on the ground that they protected the health and safety of employees and the general public.'" Before the effective date of the licensing requirements, the National Solid Waste Management Association brought suit in federal court seeking a declaratory judgment that the state legislation was pre-empted by the OSH Act.16 The Association is a national trade group comprised of businesses that handle many aspects of hazardous waste transport and disposal. 7 The district court held that pre-emption under the OSH Act would not be a problem if the laws had a "legitimate and substantial purpose apart from promoting job safety."" The court then applied that standard and found that the laws were not pre-empted because their goals included protection of the public at large." On appeal, the Seventh Circuit Court of Appeals held that the OSH Act pre-empted all state laws that, without explicit approval by the Secretary of Labor, directly, clearly and substantially regulated worker health and safety.20 The court of appeals remanded the case without a finding of pre-emption because the regulations mandated by the state laws had not reached their final form.2 ' The court of appeals made clear, however, that the state could not protect employee health and safety by passing laws under the mask of environmental regulation or protection of the general "Id. para. 220(5Xd) (Smith-Hurd 1993) (formerly 7705(d)). 16Gade, 505 U.S. at 93. 16Natl Solid Wastes Mgmt. Ass'n v. Killian, No. 88 C 10732, 1989 WL 96438 (N.D. Ill. Aug. 17, 1989), vacated, 918 F.2d 671 (7th Cir. 1990), affd, 505 U.S. 88 (1992). The Association's declaratory judgment suit was also predicated on the ground of interference with the Commerce Clause. The Supreme Court does not address this issu (...truncated)