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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 [[trademark|mark]].”<ref>Brother Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir. 2003) (citation omitted).</ref> |
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 [[trademark|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 [[trademark|mark]]; (2) only so much of the [[trademark|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 [[trademark|mark]], suggest [[sponsorship]] or [[endorsement]] by the [[trademark holder]].<ref>Horphag Res. Ltd. v. Pelligrini, 337 F.3d 1036, 1041 (9th Cir. 2003).</ref> |
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== References == |
== References == |
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Revision as of 06:09, 18 January 2009
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.”[1]
- 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.[2]