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Is there a Fair Use doctrine for Trademarks too?

A couple months ago, we discussed Fair Use and how it is a potential defense to a Copyright infringement claim. As we said then, federal Copyright Law allows parties to use portions of a Copyrighted work in certain situations, such as in a review, parody or for educational purposes.

Believe it or not, there is a Fair Use doctrine for Trademarks as well. This could have implications for you if your business is accused of infringing someone else’s Trademark, or if you are the one taking action to protect a Trademark of your own.

Federal law allows Fair Use of a Trademarked work in three main ways, as MovieMaker explains. Here they are:

  • The Trademark is a “descriptive mark.” Many trademarks are considered “descriptive marks,” because they are made up of existing words or phrases. For example, “Target” is the name of a chain of retail stores. But before that, it was a word used to describe something to be aimed at. Thus, you generally should be able to use the word “target” in it is primary meaning.
  • Comparisons. The law allows businesses to reference a competing brand by name for the purposes of comparing it with another brand, as long as the comparison is not deceptive.
  • Nominative use. Using another party’s Trademark without the intent to use it for its commercial appeal is allowed. This is most often useful in video and filmmaking, such as in a street scene in which a McDonald’s sign is visible in the background.

As with most Intellectual Property matters, determining whether a potential Trademark Infringement is Fair Use or not can take a great deal of legal knowledge. An experienced IP attorney can be an enormous help with this.

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