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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.[1] 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.[2]

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."[3] 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."


  1. Cairns v. Franklin Mint Co., 292 F.3d 1139, 1150, 63 U.S.P.Q.2d (BNA) 1279 (9th Cir. 2002) (full-text).
  2. 15 U.S.C. §1115(b)(4).
  3. Id. §1052(f).

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