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.