With larger numbers of common language trademarks working their way into our daily lives, normal communication would become very difficult if courts gave absolute property rights to trademark owners. Section 33(b)(4) of the Lanham Act outlines the fair use defense to trademark infringement. A fair use of a trademark is acceptable to describe an individual’s own product, but not to describe a trademark holder’s product. The Lanham Act has been interpreted to permit use of another’s trademark even if that use may cause some consumer confusion between the description and the trademark. However, substantial confusion may invalidate the defense of good faith fair use.
There are several different instances when acceptable fair use occurs namely, “nominativeâ€, “comparative advertisingâ€, parody and satire. Nominative fair use occurs when the trademark is the only word that is reasonably available to communicate an idea. In these instances, some courts have even allowed fair use when a commercial party uses the trademark to describe the trademark holder’s product. Both nominative and comparative advertising fair use are acceptable so long as the competing use (1) employs only so much as the trademark holder’s mark as is necessary to convey the comparison; (2) does not suggest sponsorship by the trademark holder; and (3) does not materially affect the commercial value of the trademark holder’s mark.
While both parody and satire may also be considered fair use, a stronger argument can be made in favor of parody because an obvious parody would not likely be confused with the trademark holder’s mark.
The foregoing generally applies as well to copyrighted subject matter, with additional special protection being offered by the Copyright Act for educational and critical uses of a work. However, any use of a work of authorship that employs more than is necessary to convey the educational or critical use, or that is primarily used for commercial gain, may be considered a copyright infringement.