Eleanor Finch
Fair use is a legal doctrine that allows people to use another person's intellectual property without permission under certain circumstances. In the context of trademark law, fair use permits the use of a registered trademark by a third party as long as it does not infringe upon the owner's rights. This typically occurs when the trademark is used in a descriptive sense to describe a product or service rather than as a trademark to indicate the source of the goods or services. Nominative fair use, another type of fair use, allows the use of a trademark to refer to the trademark owner's goods and services, usually when they cannot be easily identified without using the trademark. However, it is important to note that trademark owners have the right to prevent others from using their trademark without permission, and courts may consider the possibility of confusion or a false sense of affiliation when determining whether a use is fair.
| Characteristics | Values |
|---|---|
| Trademark Fair Use | Using a trademark in a descriptive sense or nominative sense |
| Descriptive Fair Use | Using a trademark to describe a characteristic of a product or service without indicating the source of the product or service |
| Nominative Fair Use | Using a trademark to identify the actual goods and services that the trademark holder identifies with the mark |
| Classic Fair Use | Using a trademark to describe one's goods or services without indicating the source of the goods or services |
| Fair Use Exceptions | Comparative advertising, parody, non-commercial use in academic articles, media reports, etc. |
| Fair Use Requirements | Use must be necessary to indicate the intended purpose of the product and must be made in accordance with honest commercial practices |
| Fair Use and Sponsorship | Fair use must avoid giving the impression of sponsorship or endorsement by the trademark owner |
| Fair Use and Likelihood of Confusion | Fair use must not create a likelihood of confusion or a false sense of affiliation, connection or association with the trademark owner |
| Fair Use and Trademarks | Trademarks can be used in good faith if they are a descriptive word or common symbol such as a pine tree |
| Fair Use and US Trademark Law | Fair use of trademarks is more limited than in the context of copyright |
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What You'll Learn
Nominative fair use
- The product or service in question is not readily identifiable without the use of the trademark.
- Only as much of the mark as is reasonably necessary to identify the product or service is used.
- The use of the mark does not suggest sponsorship or endorsement by the trademark owner.
For example, a media outlet might use a registered trademark name to report on an event or poll readers. A repair shop can also use a trademark to indicate the goods they repair, such as "We repair Rolls-Royce cars".
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Descriptive fair use
In another instance, the use of "Happy Wedding" on gift bags for wedding presents was considered a message to the wedding couples and not a use of the trademark "HAPPY WEDDING". A label indicating "containing Takara genuine sweet cooking rice wine" on "soup stock" was also considered descriptive fair use because it merely indicated the raw material used in the soup stock.
It is important to note that descriptive fair use does not indicate the source of the goods or services but instead uses the word that is registered as the trademark to describe them. The Lanham Act limits trademark rights when using descriptive terms to avoid creating monopolies on words that are needed to define products or services. A word is deemed "descriptive" if it references a characteristic, quality, flavour, function, or purpose of the goods or services.
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Classic fair use
"Fair use" is a legal doctrine that allows people to use other people's intellectual property without permission under certain circumstances. When it comes to trademarks, there are two main types of fair use: descriptive fair use and nominative fair use. This response will focus on providing a detailed overview of classic fair use, which is sometimes referred to as descriptive fair use.
To establish classic fair use, two key elements must be demonstrated:
- The allegedly infringing term is used fairly and in good faith to describe the goods, services, or their geographic origin.
- The use of the term does not result in consumer confusion regarding the commercial source of the trademarked product.
In the case of Soweco, Inc. v. Shell Oil Co., Shell successfully defended against trademark infringement by arguing that it used the word "larvicide" descriptively to refer to the purpose of its products (killing fly larvae and other insects) rather than as a trademark. The court found that Shell used the term in good faith and that there was no consumer confusion about the source of the products.
It's important to note that the Lanham Act limits trademark rights when it comes to using descriptive terms to avoid creating monopolies on words that are necessary to define products or services. Additionally, the fair use analysis considers factors such as the likelihood of confusion, the strength of the trademark, the descriptive nature of the term, and the availability of alternate descriptive terms.
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Comparative advertising
The use of a registered trademark by a third party may constitute fair use under certain circumstances. "Fair use" is a legal doctrine that allows people to use other people's intellectual property without permission under specific conditions. In the context of trademarks, fair use typically refers to two main types: descriptive fair use and nominative fair use.
Descriptive fair use involves using a trademark as a descriptor rather than as a trademark itself. This type of fair use is applicable when the trademark has a descriptive meaning in addition to its secondary meaning as a trademark. For example, using the term "inhibitor" to describe a long-term corrosion inhibitor product would be considered descriptive fair use of the registered trademark "THE INHIBITOR".
Nominative fair use, on the other hand, permits the use of a trademark to refer to the trademark owner's goods or services associated with the mark. This type of fair use is generally permissible if the product or service cannot be easily identified without using the trademark, only the necessary portion of the trademark is used, and the use does not imply sponsorship or endorsement by the trademark owner. For instance, a media outlet might use a registered trademark name to report on an event or poll readers. Nominative fair use commonly arises in comparative advertising, where companies compare their products or services to those of competitors.
While comparative advertising can be a powerful marketing tool, it carries the risk of claims of false advertising and trademark infringement. Companies should proceed with caution by conducting a risk-benefit analysis and consulting legal counsel. Any claims made in the advertisement must be factually true and supported by documented proof. By exercising caution and adhering to legal and ethical standards, companies can leverage comparative advertising while mitigating potential legal risks.
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Sponsorship or endorsement
The use of a registered trademark by a third party may constitute fair use under certain conditions. Nominative fair use permits the use of a trademark to refer to the trademark owner's goods and services, provided it meets the following criteria:
- The product or service in question cannot be readily identifiable without using the trademark.
- Only the necessary amount of the trademark is used to identify the product or service.
- The use of the trademark does not suggest sponsorship or endorsement by the trademark owner.
In other words, nominative fair use allows for the use of a trademark in a descriptive sense, rather than as a source identifier. For example, it is permissible to refer to "the professional basketball team from Chicago" when describing the Chicago Bulls. Here, the trademark is used only to describe the team, and does not imply sponsorship or endorsement. Similarly, a media outlet might use a trademark name to report on an event or poll readers.
It is important to note that the use of a trademark in a way that creates a likelihood of confusion or a false sense of affiliation with the trademark owner is not considered fair use. This includes using words or statements that imply endorsement, such as "recommended", "preferred", or "approved". Courts may consider the possibility of confusion when analyzing whether a use is fair or not, and intent to show confusion may also be taken into account.
Descriptive fair use is another type of fair use, where a trademark is used as a descriptor rather than as a trademark. For example, the use of the term "inhibitor" by WD-40 Company was found to be descriptive fair use of the registered mark "THE INHIBITOR" when used to describe a long-term corrosion inhibitor product.
In summary, the use of a registered trademark by a third party may constitute fair use if it is used in a descriptive sense or to refer to the trademark owner's goods and services, provided it does not suggest sponsorship or endorsement and does not create a likelihood of confusion or a false sense of affiliation.
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Frequently asked questions
Fair use is a legal doctrine that allows people to use someone else's trademark without their permission under certain circumstances. There are two main types of fair use: descriptive fair use and nominative fair use.
Descriptive fair use occurs when someone uses a trademark in a descriptive sense to describe their goods or services, rather than as a trademark to indicate the source of the goods or services. For example, WD-40 Company’s use of the term “inhibitor” was found to be descriptive fair use of the registered mark THE INHIBITOR when used to describe a long-term corrosion inhibitor (WD-40) product.
Nominative fair use occurs when a trademark is used to refer to the trademark owner's goods and services associated with the mark. For example, it is not trademark infringement to refer to a printer produced by Casio as a "Casio printer". Nominative fair use generally applies to comparative advertising, parody and non-commercial use of trademarks in academic articles, media reports, etc.
Trademark infringement is the unauthorized use of a trademark in a way that would likely confuse or deceive customers as to the source or origin of the connected goods or services. For example, using Apple's logo on electronic gadgets would be trademark infringement as customers would likely be confused about the origin of the goods.
