If you’ve invested a lot of effort in your brand, there’s no reason why others should profit off that hard work. This is why trademark law is so useful to businesses. When you come up with a word, design, or phrase that identifies your brand, you can register it as a trademark. That way, all third parties would usually need your permission to use your trademark.

 

It’s worth noting, however, that not every unauthorized use counts as trademark infringement. If you file an infringement claim, the other party may claim the fair use defense. Here’s how this defense works and when you can expect to see it.

What Is the Fair Use Defense?

 

As the name implies, the fair use defense allows people to use someone else’s trademark if that usage is considered fair. Fair use comes in two main types: descriptive and nominative.

 

Descriptive Fair Use

 

Descriptive fair use allows a third party to describe its products or services using someone else’s trademark. This is permissible if the trademark is descriptive in nature and the third party shows no intent to capitalize on the trademark itself. For instance, a candy maker may use the term “sweet” to describe its candy despite a car maker using the same term for its cars.

 

Nominative Fair Use

 

Nominative fair use comes into play when a third party uses a trademark to refer to the trademark owner’s products or services. This is particularly common in news reporting, comparative advertising, and academic studies. To establish nominative fair use, the third party must meet three requirements:

 

• The use of the trademark must be necessary to identify it
• The third party must only use as much of the trademark as necessary to identify it
• The third party must not be sponsored or endorsed by the trademark owner

 

Common Examples of Nominative Fair Use

 

As mentioned, nominative fair use comes in various forms. Here are the three main examples.

 

News Reports and Commentary

 

Someone can use your trademark if they’re reporting on you or your products/services. For instance, If a news channel runs a story about the rising gas prices, they’ll likely list the average gas prices of companies like Chevron and Exxon. Even if a company believes the report has tarnished its brand, the news agency will be able to use the nominative use defense.

 

Comparative Advertising

 

Under trademark law, a third party can use someone else’s trademark as a comparison point in their ads. For example, if a third party sells running shoes, they could compare the quality of their shoes to Adidas, Nike, or Reebok. As long as they meet the three requirements for nominative fair use listed above, they can specifically name these companies.

 

Parody and Criticism

 

Someone can use your trademark to criticize or parody you or your products/services. This is why anyone can write a negative review of the latest Marvel film without risking a trademark law violation. This type of protection stems from the First Amendment principles against limiting or punishing free speech.