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The nominative fair use defense is appropriate "where a defendant has used the plaintiff's mark to describe the plaintiff's product, even if the defendant's ultimate goal is to describe his own product."<ref>Cairns v. Franklin Mint Co., 292 F.3d 1139, 1151 (9th Cir. 2002).</ref> It “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.”<ref>Brother Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir. 2003) (citation omitted).</ref> |
The nominative fair use defense is appropriate "where a defendant has used the plaintiff's mark to describe the plaintiff's product, even if the defendant's ultimate goal is to describe his own product."<ref>Cairns v. Franklin Mint Co., 292 F.3d 1139, 1151 (9th Cir. 2002).</ref> It “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.”<ref>Brother Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir. 2003) (citation omitted).</ref> |
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| − | + | :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]].<ref>[[Horphag Research v. Pellegrini|Horphag Res. Ltd. v. Pelligrini]], 337 F.3d 1036, 1041 (9th Cir. 2003).</ref> |
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== References == |
== References == |
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