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What is "Fair Use"?

Fair Use of Trademarks (intended for a non-legal audience)

1. What is fair use?

Trademarks enable the public to recognize goods or services as originating from a particular source. A trademark owner can stop others from using its trademark in order to prevent the public from being confused about the source of the goods or services. In some circumstances, however, someone may use another party's trademark if the use is considered a "fair use." This "fair use" exception is recognized throughout most of the world.

2. What are the types of fair use?

In general, there are two types of fair use: descriptive fair use and nominative fair use.

Descriptive fair use permits use of another's trademark to describe the user's products or services, rather than as a trademark to indicate the source of the products or services. This usually is appropriate where the trademark concerned has a descriptive meaning in addition to its secondary meaning as a trademark. For example, WD-40 Company's use of the term "inhibitor" was found to be descriptive fair use of the registered mark THE INHIBITOR when used to describe a long-term corrosion inhibitor product.

Nominative fair use permits use of another's trademark to refer to the trademark owner's actual goods and services associated with the mark. Nominative fair use generally is permissible as long as (1) the product or service in question is not readily identifiable without use of the trademark, (2) only so much of the mark as is reasonably necessary to identify the product or service is used and (3) use of the mark does not suggest sponsorship or endorsement by the trademark owner. For example, one could refer to "the professional basketball team from Chicago," but it is simpler and more understandable to say the Chicago Bulls. Here, the trademark is used only to describe the thing rather than to identify its source and does not imply sponsorship or endorsement. Nominative fair use generally applies to comparative advertising, parody and noncommercial use of trademarks in academic articles, media reports, etc. In Europe, use in comparative advertising must comply with the European Union directive concerning misleading and comparative advertising.

3. What common situations are considered fair use?

Using a geographical name (e.g., a city's name) relating to the user's business location, even if that name is the same as or similar to another's mark, generally is considered fair use. The fair use exception generally permits use of descriptive terms about the kind, quality, quantity, intended purpose, value, geographical origin, time of production of the goods or of rendering of the service, main raw materials, functions, weight or other characteristics of the goods or services. However, people should be careful that use of another's mark under this type of fair use is in accordance with honest commercial practices that do not suggest association with the trademark owner and that do not depreciate the value of the goodwill in the mark.

4. Is the concept of fair use universally recognized by that name?

No. Some countries, including Argentina, Hong Kong SAR, Japan, Malaysia, Mexico and the Philippines, may not explicitly refer to the concept of "fair use" in case law or statutes, yet they recognize legal theories similar to fair use. This is also the case with European Union law.

5. What are some additional examples of fair use?

In general, the following uses are considered fair use:

Examples of NOT fair use:

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