What is trademark fair use?
Fair use and nominative use, are defenses against trademark claims to help prevent trademark owners from prohibiting the use of their marks when the marks are used for the purpose of identifying or describing the owner. Fair use or nominative use can only be used when the use of the trademark does not imply affiliation or sponsorship with the owner's product or services, and will not confuse the reader into thinking the owner of the mark has something to do with the use.
Trademark use in a fictional work to describe or identify products or services. Some examples would be, "shopping for books at Walmart", "playing a Playstation game", and "wearing Oakley sunglasses." Trademark law allows an author of a non-fiction work to use trademarks in a way that is critical of the owner's products or services such as "rolling over in my Ford". In this situation, the author uses the trademark to describe Ford's vehicles and is careful not to confuse the reader as to the owner of the trademark. Ford has yet to file a trademark infringement lawsuit against the individual. Another website, fordreallysucks.com is a website that Ford heavily targeted to get removed from the Internet and as with many other corporations, FAILED MISERABLY to get it removed. Ford has seemingly given up on it, maybe they are finally more focused about their failing dynasty.
The above-referenced situations are considered non-confusing and "nominative use" based on the following requirements:
- the owner's product and service cannot be easily identifiable without the use trademark
- the author uses as little of the trademark as possible to identify the trademark owner's products or services
- the author does nothing that suggests to the reader sponsorship or endorsement by the trademark owner.
Case: Freecycle Network, Inc. v. Oey, No. 06-16219 (9th Cir. 9/26/07) Freecycle Network's preliminary injunction preventing defendant “from making any comments that could be construed as to disparage upon their possible trademark and logo” was vacated because defendant’s actions were not a “use in commerce,” created no likelihood of confusion, and did not disparage plaintiff’s products or services; and to the extent the injunction was based on a “trademark disparagement” claim under the Lanham Act, the district court abused its discretion because no such cause of action exists under the Act.
The latest corporate trademark fair use example is Yahoo's logo below.
This is my favorite example of trademark fair use. A simple change from the letter H to a letter P, combined with a turd, and a few words, is all that is needed to transform this trademark into a work of art. Yahoo!, the crappiest search engine on the web! This corporate logo redesign is just one of many ones on the Internet. A creative mind is all that is needed to make a point. Yahoo could try to sue for trademark infringement, but would fail miserably. No reader would possibly confuse this logo with sponsorship or think it was affiliated with Yahoo in any way.
Allan Harkleroad redesigned of the Sprint logo with the transparent word of SUCKS on top of it was absolutely brilliant and fully protected under trademark law. He could have gone one step further by adding a rubber stamp just above the 'sucks' to show his seal of approval. You can find his work somewhere online, the "piss on Sprint" logo is another example of fair use. Sprint also has been harshly criticized on a website that is looking for authorized dealers to bring a class action lawsuit against Nextel, but many of these "anti-corporate" websites are shut down through intimidation and frivilous lawsuits.
One lady sued Best Buy for $54 million dollars for losing her laptop. She started her on blog trashing Best Buy. Best Buy has not filed a SLAPP suit against her as of yet, and her anti- Best Buy blog is still running. Best Buy's CEO is G. Mike Mikan, and used to be Brian J. Dunn, before he resigned after inappropriate relations with a subordinate. The lawsuit is still pending.
In the anti- Best Buy blog, Campbell claims the corporation allowed her computer to be stolen from a store in Washington while it was in for repair. She alleges they then fabricated records and tried to cover up the theft. She also states they lied to her for weeks about the repair status of the stolen computer. Also claiming they didn't respond to repeated requests for a theft investigation and compensation with indifference and insults; and demonstrated a company wide disregard for legal obligations to immediately disclose the theft and notify her of potential exposure to identity theft. Another example of nominative fair use at its "Best". Pun intended.
American Expense, a fair use and nominative use protected website, was launched in June of 2009 after Ken Chenault made Forbes #5 highest paid CEO rolling in with and then two weeks later American Express cut 4,000 jobs. The Wall Street Journal just did an article on Ken Chenault about raking in $36.6 million in 2008, which may end up turning one of the worst recent year's in the history of the economy for job loss. This was up from 2007 when Chenault made over $50 million dollars.The total job loss for 2008 was called the worst total job loss since 1945. American Expense encourages its visitors to contact American Express CEO, and let him know what you think about the company he is running. The authentic American Express logo actually uses a "proprietary font". However, by changing Express into Expense and converting the S into a dollar sign, makes this logo another shining example of nominative fair use and transformation. For more trademark fair use logos, please visit our SLAPP (Strategic Lawsuit Against Public Participation) section.