Trademark Fair Use: Some Guidelines When Making a Nominative Use of Another’s Trademark
Each situation is unique, but for example, a trademark use is likely fair when a product cannot be effectively identified without use of the trademark or when there would be no other effective way to compare, criticize, refer to or identify it without using the trademark. This is sometimes referred to as nominative fair use. One can even further mitigate the chances of trademark infringement issues by using no more of the mark’s appearance than is necessary to identify the product and make the reference intelligible to the consumer. For example, if a particular word is the plaintiff’s trademark, it may be reasonably used when you do not use any distinctive color, logo, abbreviation, or graphic that the trademark owner uses to display the trademark than is necessary to identify the product.
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