Not every use of another party’s trademark is infringement. In some situations, a person or business may use a trademark fairly to identify goods or services or to describe something accurately. This lesson explains the two forms of trademark fair use and the limits that help prevent consumer confusion.
Nominative fair use occurs when someone uses another party’s trademark to refer to the genuine goods or services identified by that mark. The user is not claiming ownership of the mark; the mark helps the audience understand what is being discussed.
All flashcards
What is nominative fair use?
Using another party’s trademark to identify or refer to that party’s genuine goods or services.
What are two key limits on nominative fair use?
Use only as much of the mark as necessary to identify the goods or services, and do not falsely imply sponsorship, approval, or endorsement by the trademark owner.
What is classic fair use?
Good-faith use of wording for its primary, ordinary descriptive meaning when consumer confusion is unlikely.
What does secondary meaning mean?
Consumers associate a term or mark, beyond its ordinary meaning, with a particular source.
What should be considered when using a trademark for parody?
A parody should be handled carefully to avoid marketplace confusion, dilution, or tarnishment.
Quiz questions
What is nominative fair use?Answer: Using another party’s trademark to refer to that party’s genuine goods or services.
How much of a trademark should a nominative user use?Answer: Only as much as is needed to identify the relevant goods or services.
When may wording that is also a trademark qualify for classic fair use?Answer: When it is used in good faith for its ordinary descriptive meaning and confusion is unlikely.
When may a use that suggests trademark-owner approval be appropriate?Answer: When the owner actually approves or authorizes the relationship being suggested.