What is Fair Use of Someone Else’s Trademark?

Trademarks exist to distinguish someone’s goods from someone else’s, and to allow them to market themselves knowing no one else is legally allowed to use their material. They are essential to protecting a business’s Intellectual Property. Trademarks can be a name, a logo, a motto, or even a phrase. When a trademark has successfully been registered, no one can utilize it while it is actively being used.

However, there are exceptions to that rule. Fair Use is a legally valid way to use someone else’s trademarks for something other than selling their product. You have probably used trademarks under the Fair Use exception without even realizing it. There are two different types of Fair Use, relating to the purpose behind the use.

Descriptive Fair Use is when someone uses a trademark that has another meaning as a descriptive word. For instance, the phrase “Love Potion” is actually a trademark, but since it more often describes an independent idea rather than the brand, other companies can legally use the phrase “love potion” to sell their own product. This could be as simple as a city or location name, which are often trademarked, but can be used to help describe to others where you are. The more unique your trademark is, the more often it will be used descriptively to clarify things for others.

Nominative Fair Use, occasionally known as Classic Fair Use, is where you use someone’s trademark to refer back to their own product. Without Nominative Fair Use, we couldn’t print the word “Nikes” – we would have to say “popular sneakers with a distinctive check mark.” Nominative Fair Use applies to cases where you need to use the trademark to clarify the thing you are describing.

Nominative Fair Use does not imply sponsorship or partnership. If you are trying to convince people that your business is officially sponsored by Nike, that use of their trademark would not fall under Fair Use. However, if you hung a sign on your door that read “We Sell Nikes Here,” that would be Fair Use. This can even be implemented for situations where you are disparaging a trademark, such as putting up a billboard that reads “My Company’s Shoes Are Better Than Nikes.” That is still Fair Use. Anything that clarifies the trademark you are referring to without implying sponsorship is considered Nominative Fair Use.

Fair Use may seem complicated, but without it we wouldn’t be able to write reviews or explain what stores actually sell. It is an essential part of the trademark process. If you need help with trademarks, contact Hayoon Kane Law Firm today. You can protect your business and start increasing your sales at the same time!

The following two tabs change content below.

Hayoon Kane Law Firm

I am committed to helping business owners such as yourself understand the intricacies of the law, so you can concentrate on growing your company.

Latest posts by Hayoon Kane Law Firm (see all)

“Trademark Filing” Package

"Trademark Filing" Package

1

Brand Discovery Session
-

See what IP your business has, what's protected (and what's not protected), what can be monetized, and what is the most cost-effective way to secure them. Then create an initial brand protection strategy with your attorney.

2

Brand Protection Strategy Session
-

Review the results of your trademark search so you understand the risks your trademark has. Your attorney will help you fine-tune your brand protection strategy.

3

Trademark Application Filing
-

We submit your USPTO trademark application to begin the registration process.

4

Monitoring your application process
-

We monitor your trademark application and resolve administrative issues with the USPTO examiner.

Brand Protection Package

Brand Protection Package

1

Protection Strategy Session
-

Review who is taking advantage of your brand and make strategies to take them down with your attorney. Your attorney will advise you on ways you can do to protect your hard work and creation, your brand.

2

Send out warning letters
-

We will send out letters to the infringers explaining your rights and demanding them to stop using your IP rights.

3

Negotiate with the infringers
-

We will negotiate terms with the infringers based on the plan we made in the Protection Strategy Session in Part 1.

4

Secure your brand value
-

We will make sure the infringers fulfill the terms of the agreement and have them sign a settlement agreement.