What is Fair Use?

Fair use is a defense against trademark infringement. It is used when a third party uses a registered trademark to describe their own goods. If this is demonstrated, then it means the use did not constitute being used as a trademark and thus not infringement. This is determined by looking at how prominently the registered trademark was displayed by the competitor, whether this was done in good faith, and whether or not it was used as a description. Courts have been inconsistent in determine whether likelihood of confusion has an impact on fair use. The degree of possible confusion could be a factor. It is important to note that fair use is different from advertisements which compare goods. Advertising comparison will be judged using likelihood of confusion. Nominative use may be permissible so long as the trademark has to be used to identify the described goods or services, the use is as limited in scope as possible, and the use does not suggest an endorsement by the owner of the trademark. Always be mindful when using the mark of a competitor under fair use to ensure you are not infringing on their rights.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.

Fighting Internet Infringement

The vast scope of the internet can have major implication when addressing trademark infringement. If you find yourself on the wrong side of an internet infringement case, there may be several avenues available to overcome a detrimental outcome. One of the most common defenses is using the descriptive fair use doctrine. This doctrine allows for a defense when a registered trademark is used with good faith only to describe your goods or services. Use may also be allowed if it is nominative fair use, which means it was only used to refer to the registered trademark. In addition, commentary, parody, noncommercial use, and criticism are allowed as they are protected by the right to free speech. It is imperative to ensure that you are not using a registered trademark to attract customers. Many times this can boil down to whether the use was in bad or good faith. Always be sure you know not only your rights, but those of another trademark owner if their mark appears on your website in any capacity.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.