U.S. trademark law
Classical fair use (also called descriptive fair use) occurs when a defendant uses the plaintiff's descriptive mark to describe the defendant's own product. This defense is set forth in the Lanham Act. The Act provides for a defense of fair use when:
|“||the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, . . . of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin.||”|
Descriptive words that directly inform the consumer of a characteristic, quality, ingredient, or function of a product may be protectable as a trademark if such words have acquired "secondary meaning." The statutory language does not use the term "secondary meaning," but rather states that a descriptive mark may be registered if it "has become distinctive." For example, if a substantial part of the public has come to regard certain descriptive words as signifying a single and unique source of the product, rather than merely a description of the product itself, then the words or phrase has "secondary meaning."
- Cairns v. Franklin Mint Co., 292 F.3d 1139, 1150, 63 U.S.P.Q.2d (BNA) 1279 (9th Cir. 2002) (full-text).
- 15 U.S.C. §1115(b)(4).
- Id. §1052(f).