Nominative Fair Use

Definition

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.

5 Must Know Facts For Your Next Test

1. Nominative fair use allows the use of a trademark to identify the trademark owner or their product, as long as the use does not suggest sponsorship or endorsement by the trademark holder.
2. The use must be necessary to identify the trademark owner or their product, and the use must be limited to what is reasonably necessary to make the identification.
3. Nominative fair use is a defense to trademark infringement, and the burden of proof is on the defendant to establish that the use falls within the scope of this doctrine.
4. Courts consider factors such as the purpose of the use, the nature of the use, and the prominence of the use in determining whether the use is a permissible nominative fair use.
5. Nominative fair use is distinct from descriptive fair use, which allows the use of a trademark to describe a product or service, rather than to identify the source.

Review Questions

• Explain the purpose and key features of the nominative fair use doctrine.
  • The nominative fair use doctrine allows the use of a trademark to identify the trademark owner or their product, without requiring permission from the trademark holder. This is a defense to trademark infringement, as long as the use is necessary to identify the trademark owner or their product, and the use is limited to what is reasonably necessary to make the identification. The use must not suggest sponsorship or endorsement by the trademark holder, and courts consider factors such as the purpose, nature, and prominence of the use in determining whether it falls within the scope of this doctrine.
• Differentiate between nominative fair use and descriptive fair use in the context of trademark law.
  • Nominative fair use and descriptive fair use are distinct legal doctrines in trademark law. Nominative fair use allows the use of a trademark to identify the trademark owner or their product, while descriptive fair use allows the use of a trademark to accurately describe a product or service, rather than to identify the source. The key distinction is that nominative fair use is used to refer to the trademark owner or their product, while descriptive fair use is used to describe the characteristics of a product or service. Both doctrines serve as defenses to trademark infringement, but the specific circumstances and legal considerations differ between the two.
• Evaluate the importance of the nominative fair use doctrine in maintaining a balance between trademark rights and free speech.
  • The nominative fair use doctrine plays a crucial role in maintaining a balance between the legitimate rights of trademark owners and the principle of free speech. By allowing the use of trademarks to identify the trademark owner or their product, without requiring permission, the doctrine ensures that individuals and entities can engage in truthful, non-misleading speech about trademarks and their associated products or services. This supports the public's interest in access to information and the ability to make informed choices, while also respecting the trademark owner's interest in preventing consumer confusion and protecting the integrity of their brand. The careful application of the nominative fair use doctrine by courts helps to strike a balance between these competing interests, preserving the benefits of both trademark protection and free expression.

Related terms

Fair Use:

A legal doctrine that permits the use of copyrighted material without permission from the copyright holder under certain circumstances, such as for commentary, criticism, news reporting, teaching, or research.

Trademark Infringement:

The unauthorized use of a trademark in a way that is likely to cause confusion, mistake, or deception in the marketplace about the source of the goods or services.

Descriptive Fair Use: The use of a trademark to accurately describe a product or service, rather than to identify the source of the product or service.