When Trademark Infringement Isn’t Infringement (Fair Use Defense)
Posted On September 17, 2020
a party who unintentionally uses the trademark of another is not liable for trademark infringement. This is a topic that many people are looking for. chibariku.com is a channel providing useful information about learning, life, digital marketing and online courses …. it will help you have an overview and solid multi-faceted knowledge . Today, chibariku.com would like to introduce to you When Trademark Infringement Isnt Infringement (Fair Use Defense). Following along are instructions in the video below: This mario from mexico and in its video. Were gonna talk about when trademark trademark infringement isnt infringement so before we talk about that lets just do quick recap of what a trademark is so trademarks are typically words phrases symbols and or designs used as a source identifier for particular products so think of like nike apple google or amazon basics. Which are all registered trademarks so while a trademark owner or a registrant has broad powers. Those powers arent absolute meaning there are some limitations to it and some of those limitations are for example. The first sale doctrine laches acquiescence and fair use and in this video. Thats what were going to talk about is star use in other videos. Well well cover the other limitations so with fair use theres two different types of fair use one is descriptive fair use and the other one is nominative fair use. So lets talk about the difference between them and how theyll help you out knowing difference between these as an amazon seller. So with the script of fair use its defined as the good faith use of a term such like a mark used by a use by a third party. So not the trademark owner to describe its goods or services. So when course are evaluating this defense against trademark infringement. The script of fair use defense what theyll consider is three elements so whether the defendant used the trademark as one other than as a mark two in the descriptive sense and three in good faith. And i know that kind of sounds confusing so let me just give you guys an example of the script of fair use so we all know that apple is a registered trademark right so however. A farmer who grows and sells apples is able to use the word or the took the mark apple. His marketing right so hes using it using the mark apple or the word apple in one. Hes using it as other than as a mark to in the descriptive sense and three in good faith.
Hes not relating back to the apple products. So this would be allowed and would be considered descriptive fair use and obviously it wouldnt be infringement. So another example would be amazon that is a registered trademark right so if someone has a tour guide business. They can still use the word amazon to kind of describe their expedition to the amazon river. That would all be called or covered on their descriptive fair use so there wouldnt be any infringement. There. So the use of apple by the farmer to market and sell his actual apples. And also a tour guide using the term app. Sorry using the term amazon to advertise his tour business. Those would all be considered a descriptive fair use so now lets move on to nominative fair use so its kind of similar. But there are differences so with a nominative fair use the definition is use this use occurs. When party a uses a trademark belonging to party b to refer to party bs product in a manner. That is non deceptive or likely to cause confusion. So its got to be truthful. It cant be deceptive and it cant cause confusion. And when courts are kind of considering this defense.
The question really is a real issue is whether defendants reference to the trademark created confusion as to whether the trademark owner endorsed or sponsored defendant or defendants product. Okay. So one example would be a mechanic shop claiming that its services for cars. Obviously ford is a registered trademark. But a mechanic shop can do that they say hey we we service fords for trucks whatever. It is right so that would be considered nominative fair use also amazon sellers you guys can make the claim which im sure most of you guys are aware of that your phone cases that you sell fit iphones and google nexus phones. Again iphones is a registered trademark and google nexus or whatever their phones are called thats a registered trademark. So those are the two kind of branches of fair use. Its going to be descriptive fair use and nominative fair use so now i mean how can you guys use this information. Some of you may receive letter cease and desist letters stating that you cant use this term because weve got a trademark on it or you cant use you know another or that theyve got a trademark on so before you guys kind of respond to the to those letters and theyll cease and desist letters kind of consider whether any of these two defenses. Apply whether your use of that registered trademark was either descriptive or nominative right so those are two defenses and upcoming videos. Well go ahead and cover the rest of those defenses. Which is the first sale doctrine. Thats going to be a longer video. Because theres so much more while the first sale doctrine is a defense to trademark infringement and an exception to trademark infringement. Even the exception has exceptions so thats going to be a longer video and thats something well have coming up in the near future. .
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