4.11 Fair Use of Trademarks
2 min read•june 25, 2024
Trademark allows limited use of others' trademarks without permission. It covers nominative use for reference, classic use for description, and 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 ( vs )
- Use must not diminish distinctiveness of the trademark (, )
- 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
- 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)
- 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 ()
- 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:
- dog toys parodying handbags
- jeans parodying jeans
Additional Considerations in Trademark Fair Use
- : A key factor in determining trademark infringement, assessing whether consumers might be confused about the source of goods or services
- : Weakening of a famous trademark's distinctiveness through use by others, even in absence of consumer confusion
- : Use of a trademark in connection with the sale or advertising of goods or services, which may affect fair use analysis
- : How the average consumer views and understands the use of a trademark in context
- : The level of protection a trademark receives based on its distinctiveness, impacting fair use considerations
Key Terms to Review (18)
Adidas: Adidas is a renowned global brand that specializes in the design, manufacture, and sale of athletic apparel, footwear, and accessories. As a leading player in the sportswear industry, Adidas has established a strong trademark identity that is widely recognized by consumers worldwide.
Chewy Vuiton: Chewy Vuiton is a term used in the context of fair use of trademarks, referring to the unauthorized use of a famous trademark in a parody or satirical manner. It typically involves creating a play on words or visual similarity to the original trademark in order to make a humorous or critical statement.
Classic Fair Use: Classic fair use refers to the legal doctrine that allows the limited use of copyrighted material without requiring permission from the copyright holder. This principle is particularly relevant in the context of trademarks, where it enables certain uses of a trademark that do not constitute infringement.
Commercial Use: Commercial use refers to the utilization of a trademark, copyrighted work, or other intellectual property for the purpose of generating revenue or financial gain. It is an important consideration in the context of fair use, as the commercial nature of a use can impact the analysis of whether the use is permissible under the law.
Consumer Perception: Consumer perception refers to the way individuals interpret and respond to the information and stimuli they encounter about a product or brand. It encompasses the mental processes and emotional reactions that shape a consumer's understanding, beliefs, and attitudes towards a particular offering.
Dumb Starbucks: Dumb Starbucks was a parody coffee shop that opened in Los Angeles in 2014, mimicking the branding and aesthetic of the Starbucks coffee chain. It attracted significant media attention for its use of the Starbucks name and logo without permission, raising questions about the boundaries of fair use in trademark law.
Fair Use: Fair use is a legal doctrine that allows the limited use of copyrighted material without requiring permission from the copyright holder. It is an exception to the exclusive rights granted to the owner of a copyright, providing a framework for determining when a use of copyrighted material is acceptable.
Jordache: Jordache is a brand name associated with a line of denim jeans and other apparel products. It is particularly relevant in the context of fair use of trademarks, as the Jordache brand has been involved in several trademark disputes and legal cases related to trademark protection and fair use principles.
Kleenex: Kleenex is a brand of facial tissue owned by the Kimberly-Clark Corporation. It has become a genericized trademark, where the brand name is commonly used to refer to any type of facial tissue, regardless of the manufacturer.
Lardashe: Lardashe is a term used in the context of fair use of trademarks, referring to the unauthorized use of a trademark in a way that is considered humorous or parodic. It involves the intentional distortion or alteration of a trademark for the purpose of commentary, criticism, or satire.
Likelihood of Confusion: Likelihood of confusion is a key concept in trademark law that determines whether the use of a trademark by one party is likely to cause consumer confusion with the trademark of another party. It is a central consideration in evaluating trademark infringement claims.
Louis Vuitton: Louis Vuitton is a renowned French fashion house and luxury goods company known for its iconic monogrammed handbags, luggage, and other leather goods. As a globally recognized brand, Louis Vuitton's intellectual property, particularly its trademarks, play a crucial role in the context of fair use of trademarks.
Nike: Nike is a prominent global brand known for its athletic apparel, footwear, and equipment. As a leading trademark, Nike's brand identity and reputation are crucial assets that the company seeks to protect through various legal mechanisms, including the fair use of its trademark.
Nominative Fair Use: Nominative fair use is a legal doctrine that allows the use of a trademark in a non-commercial manner to refer to the trademark owner or their product, without requiring permission from the trademark holder. This concept is particularly relevant in the context of 4.11 Fair Use of Trademarks.
Parody: Parody is a form of creative expression that imitates or mimics the style, content, or form of an original work, often for the purpose of humor, commentary, or criticism. It involves the use of recognizable elements from the original work in a new context or with a different purpose.
Trademark Dilution: Trademark dilution refers to the diminishment of the distinctive quality of a famous trademark, either through the use of the mark on unrelated products (dilution by blurring) or the tarnishment of the mark's reputation (dilution by tarnishment). This concept is central to understanding trademark remedies and the fair use of trademarks.
Trademark Strength: Trademark strength refers to the level of distinctiveness and protection a trademark enjoys, which determines its ability to uniquely identify and distinguish the source of goods or services in the marketplace. The strength of a trademark is a crucial factor in both the spectrum of distinctiveness and the fair use of trademarks.
Xerox: Xerox is a term that has become synonymous with the process of photocopying or reproducing documents. It originated from the Xerox Corporation, a company that pioneered the development of the first commercial photocopier in the 1940s, revolutionizing the way people duplicate and share information.