Fair use (U.S. trademark law)
|This article relies largely or entirely upon a single source. (November 2011)|
In the United States, trademark law includes a fair use defense, sometimes called "trademark fair use" to distinguish it from the better-known fair use doctrine in copyright. Freedom of speech as guaranteed by the First Amendment is a premise for the fair use doctrine in both trademark and copyright law. Fair use is consistent with the more limited protection granted to trademarks, generally specific only to the particular product market and geographic area of the trademark owner.
Most trademarks are adapted from words or symbols already common to the culture, as Apple, Inc. is from apple, instead of being invented by the mark owner (such as Kodak). Courts have recognized that ownership in the mark cannot prevent others from using the word or symbol in these other senses, such as if the trademark is a descriptive word or common symbol such as a pine tree. This means that the less distinctive or original the trademark, the less able the trademark owner will be to control how it is used.
A nonowner may also use a trademark nominatively—to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, United States law actually encourages nominative usage by competitors in the form of comparative advertising.
The fair use defense in trademark law is not precluded by the possibility of confusion, according to the U.S. Supreme Court in 2004. However, courts may consider the possibility of confusion in analyzing whether a use is fair or not. Intent to sow confusion is also relevant; hence, the general rule that no more of the trademark should be used than necessary for the legitimate purpose. For instance, use of a word mark is preferred to a logo, and a word mark in the same style of type as surrounding text is preferred to a word mark in its trademarked distinctive type.
- KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004).