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Fair Use: A Summary for Trademark and Copyright Law

“Fair use” is a type of defense against claims of infringement in both trademark and copyright law.  For that reason, this post will be a rare trademark/copyright crossover.  But even though these defenses share the “fair use” name, they are different for trademarks versus copyrights.

Fair Use In Trademark Law

Most people are probably more familiar with the fair use defense in copyright law, but there is a similar trademark defense.  Fair use in trademark law prevents it from overtaking the First Amendment rights of others.  You can use trademarks in a few different ways without constituting an infringement.

One way is called “descriptive fair use.”  This means that trademark rights to an existing word do not restrict use of the English language.  The most common example used for this is the word Apple.  Although APPLE is one of the most valuable trademarks on the planet for computers, Apple the company cannot prevent people from using “apple” to describe the fruit the word refers to.

“Nominative fair use” is another type of fair use under trademark law.  This means that you can refer to another trademark for various purposes.  The key here is that it must be clear that you are just making reference to that other mark.  You cannot do so in a way that confuses people into thinking the mark’s owners sponsored or approved your use of the mark.  You might do this in order to review a product or service, for example.  Or you may name the mark in combination with this next type…

“Comparative fair use” is frequently used to compare products or services.  For example: “Consumers prefer The Whopper to the Big Mac, 10-to-1.”  “The new Macbook has twice the processing speed as the Surface Book.”  You will frequently come across these types of comparisons in advertising.  They try to persuade consumers to prefer one thing over another.

Fair Use In Copyright Law

Most people are probably more familiar with fair use as it relates to copyright law.  There are situations where use of someone else’s original creative work is permissible.  The fair use analysis considers four factors in order to determine whether there is a fair use:

  1. Purpose and Character of the Use: This factor focuses on the nature of the use.  If the use is commercial, that will typically factor against the person claiming fair use.  On the other hand, using a copyrighted work for educational purposes is more likely to be a successful defense.
  2. Nature of the Copyrighted Work: For this factor, works considered to be more creative favor the copyright owner.  A less creative work might be one that deals with ideas, facts, and information.  The fact that a work is unpublished would also weigh against a claim of fair use.
  3. Amount and Substantiality: The more you use a work, the less likely there will be a finding of fair use.  This means both how much you use a work, and also what proportion of the work you use.  For example, a short movie clip that demonstrates a point for educational purposes might be protected, whereas showing the entire film is not.
  4. Effect On Value: If the use has a detrimental effect on the value of the copyright work, then a successful defense is less likely.

These are not the only factors that courts can use in evaluating a claim of fair use.  You have probably heard that “parody” and “satire” can also constitute an acceptable defense.

Are You Unsure Whether Your Use of a Trademark or Copyrighted Work Is a Fair Use?

If you have a question about whether you are infringing a trademark or copyright, please call me at (314) 479-3668, email me at, or complete the contact form found on this page to schedule your free initial consultation today.  I look forward to speaking with you.

Contact Kevin

P.O. Box 94208
Phoenix, AZ 85070

(480) 360-3499

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