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.
Most importantly, it is always critical to consider whether the use does anything that would, in conjunction with the trademark, suggest sponsorship or endorsement by the trademark owner. A use of another’s trademark does not suggest sponsorship or endorsement of your product when you do not attempt to deceive, or mislead, or capitalize on consumer confusion. Use of another’s trademark to describe the trademark owner’s product may not necessarily suggest sponsorship or endorsement, even if your ultimate goal is to describe your own product. Moreover, the fact that your use of the trademark may bring you a profit or help in competing with the trademark owner does not necessarily mean the use was not a fair use, but these types of situations require particular attention.
A trademark attorney is in the best position to advise you regarding how to use a particular mark so as to reduce the chance of a trademark infringement lawsuit. Contact one of our trademark lawyers today to discussed trademark fair use.
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