4.11 Fair Use of Trademarks

Trademark fair use allows limited use of others' trademarks without permission. It covers nominative use for reference, classic use for description, and parody for commentary. Fair use balances trademark protection with free expression and competition.

Courts consider factors like consumer confusion, dilution, and commercial impact when evaluating fair use claims. Parody gets special protection if it's genuine and doesn't cause confusion. Understanding these concepts helps navigate trademark law's complexities.

Fair Use of Trademarks

Concept of trademark fair use

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• Allows use of another's trademark in specific situations without permission
• Use must not cause confusion about source of goods or services (Nike vs Adidas)
• Use must not diminish distinctiveness of the trademark (Xerox, Kleenex)
• Determined case-by-case based on purpose of use, nature of trademarked work, amount used, and effect on potential market value

Nominative vs classic fair use

• Nominative fair use permits using another's trademark to refer to their actual goods or services
  • Use is necessary to identify the goods or services (product reviews, comparisons)
  • Use does not imply sponsorship or endorsement by trademark owner (news reporting)
• Classic fair use allows using another's trademark descriptively, not as a trademark
  • Use is in good faith to describe user's own goods or services
  • Examples: "sweet" to describe taste of food, "soft" for fabric texture

Parody in trademark fair use

• Parody humorously imitates or criticizes another's work as a form of expression
• Can be defense against trademark infringement under fair use if:
  • It is a genuine parody, not just humorous reference to trademark (Dumb Starbucks)
  • It does not create confusion about source of goods or services
  • It does not dilute distinctiveness of the trademark
• Factors considered:
  • Similarity between parody and trademarked work
  • Intent behind the parody (commentary, criticism)
  • Likelihood of consumer confusion
  • Potential impact on market for trademarked work
• Examples of protected parodies:
  • Chewy Vuiton dog toys parodying Louis Vuitton handbags
  • Lardashe jeans parodying Jordache jeans

Additional Considerations in Trademark Fair Use

• Likelihood of confusion: A key factor in determining trademark infringement, assessing whether consumers might be confused about the source of goods or services
• Trademark dilution: Weakening of a famous trademark's distinctiveness through use by others, even in absence of consumer confusion
• Commercial use: Use of a trademark in connection with the sale or advertising of goods or services, which may affect fair use analysis
• Consumer perception: How the average consumer views and understands the use of a trademark in context
• Trademark strength: The level of protection a trademark receives based on its distinctiveness, impacting fair use considerations