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Everything You Need to Know About Trademarks and Fair Use
By Michael Spadaccini
Trademarks are one of those things in life that nearly no one understands, but that just
about everyone is unwilling to admit. So I'll make it easy: Trademarks simply designate
a product's source of origin. If I say "Diet Coke" you probably think of a silver and red
aluminum can, or a tall glass of ice filled with dark bubbling beverage. You can probably
taste it, too. In any case, the trademark has successfully designated what it is and, and
"it" is a particular low-calorie drink from the Coca-Cola Company folks.
As a trademark attorney, I have had the pleasure of protecting the goodwill and reputation
my clients have worked so hard to create for their enterprises on dozens of occasions. No
ifs, ands or buts, trademarks are a devastatingly effective commercial tool. Whether it's
a local specialty hardware store or a global internet search engine, eventually, just about
every business has trademark issues. And I know, because I represent them all. But one of
the biggest misconceptions I find among my clients -- and lay people in general -- is that
trademarks are somehow absolute. That is, that once someone puts the letters "TM" or ®
next to a trade name, that that name is somehow off-limits to all uses whatsoever--that's
just not the case.
Think about it, Coca-Cola is often considered to be the world's most recognized and valuable
trademark. In fact, it is so well established that many folks simply overlook that it is
actually a registered trademark (U.S. Trademark Registration No. 2843235, inter alia). Yet
not every time another entity uses the words, "Coke" , "Coca-Cola" or even "Diet Coke" are
they necessarily butting up against the Coca-Cola Company trademark's rights.
And that's mainly because of the doctrine of "fair use," of which there are two varieties:
nominative and classic. When I go to a hot-dog stand, for example, and see the words "Diet
Coke" scrawled on the chalkboard that serves as a menu, I can be reasonably sure that the
stand's owner hasn't cleared this use of the Diet Coke trademark with the Coca-Cola Company.
However, neither do my trademark-infringement sensors fire at this blatant unauthorized
trademark appropriation. And that makes sense. After all, how else could the hot-dog stand's
owner communicate to me that I can purchase a Diet Coke there without identifying it as such?
It wouldn't be reasonable to expect the stand's owner to write, "Now Available: Low Calorie
Carbonated Cola Beverage, Made by Famous Georgia-Based Company!" The easiest, clearest and
simplest way to identify Diet Coke is, well, by calling it Diet Coke, and this principal
-- instant identification -- that is the soul of nominative fair use.
And that's what keeps us all out of Trademark Prison. OK, I'm still at the hot-dog stand.
Only this time there is no Diet Coke offered on the menu. Instead, under beverages, appears,
"Debbie's 'Scarsdale' Soda." Naturally, I'm curious. What is Scarsdale soda? Then I notice
that in parentheses beneath it there's a friendly explanation: "Like Diet Coke." At first
blush, that appears to be a major trademark no-no. After all, in this example the hot-dog
stand does not even sell Diet Coke, yet is being extremely cavalier with the Diet Coke trademark.
But since this use of Diet Coke is entirely descriptive -- to communicate taste, color,
caloric count, and other properties Scarsdale soda possesses -- this is permissible, and
a classic fair use of the Diet Coke trademark.
A simple way to remember the difference between the two fair uses is that when you are
using a trademark to identify the trademark holder's product, that is a nominative fair
use. When you are using a trademark to describe a something other than the trademark
holder's product, that is a classic fair use. Still confused? Don't feel bad. This distinction
drives even Federal Judges to distraction, but it's important. Good thing there isn't a
Trademark Death Row in Trademark Prison. Yet, anyway.
The preceding is a Learn About Law staff article.
From http://www.LearnAboutLaw.com/, a collection of valuable legal resources:
articles, how-to guides research tools, forums, Q&As, and self-help books.