TRADEMARK FAIR USE
United States trademark law grants trademark owners with certain rights when it comes to protecting their trademark from misuse or infringement. However, the law also recognizes that not all unauthorized use should be prevented. Under the Fair Use defense, there are numerous circumstances where non-owners may freely use a trademark without committing trademark infringement. Generally, fair use falls under one of two categories, traditional and nominative, depending on the circumstances.
Examples of Traditional Fair Use
The concept of fair use was created largely to protect the public’s right to use common words or images in a descriptive sense without concern for trademark infringement. At times it becomes necessary for non-trademark owners to use a trademark and as a part of free speech they must be able to do so. Traditional fair use occurs when a descriptive trademark is used by another company to describe its own goods. Traditional fair use is an example of why non-descriptive trademarks are entitled to stronger legal protection than descriptive trademarks.
What is Nominative Fair Use?
Nominative fair use refers to instances in which an unauthorized use of a trademark is made for the purpose of reporting, criticism, commentary and parody. In order to use another’s trademark under nominative fair use, it is necessary to meet the following requirements:
- Accurate references to the trademark, its owner, and the products or services sold under the trademark
- There is no other way to refer to the trademark owner and/or its products
- The use does not imply endorsement or sponsorship
- No more use of the trademark is made than is necessary
Whether the use is commercial in nature also plays an important role in determining whether nominative fair use exists. Nominative fair use commonly applies to news reports, critiques, reviews, and compatibility claims.
Trademark Protection and Litigation
Fair use of one of the most complex areas of intellectual property law. Unfortunately, there are no hard and fast rules that apply to every situation. If you have any questions about whether fair use may apply to your situation, please feel free to contact us for a consultation.