Nominative fair use

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The nominative fair use defense “acknowledges that ‘it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purpose without using the mark.”

“The court looks at three factors in determining whether a defendant is entitled to the nominative fair use defense (1) the product must not be readily identifiable without use of the mark; (2) only so much of the mark may be used as is reasonably necessary to identify the product; and (3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.”