Fair Use

Fair Use

There are certain circumstances when a someone can use a trademark without permission and without infringing the owner’s rights in the mark. This is called “fair use.”

 

Descriptive Fair Use

For a trademark comprising a term that has a descriptive meaning in addition to its secondary
meaning as a trademark, descriptive fair use permits use of the term to describe the user’s product
or services, rather than as a trademark to indicate the source of the product or services.

The “fair use defense” prevents a trademark owner from monopolizing, or appropriating a descriptive word or phrase.

Generally, it is permissible to use someone else’s trademark to refer to your own goods or services, if the trademark is used other than as a mark and used only to describe your goods or services or geographic origin, if done in good faith.

 

Nominative Fair Use

The use of someone else’s trademark to refer to that party or their goods or services is allowed, provided no endorsement or other sponsorship is implied.

Nominative fair use generally applies to comparative advertising, parody and noncommercial use of trademarks in academic articles, and media reports is also lawful because there is little likelihood of confusion.

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