Nominative Fair Use

Many individuals have asked me when a brand name or a trademark may be used in a product description. Here is some general legal information on that subject.

In the U.S. there is a specific "fair use" defense to trademark infringement called "nominative fair use". It is a defense to trademark infringement in the United States, by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their own. A court in the U.S. determined that you may refer to the trademark of another if: 1) the product or service can not be readily identified without using the trademark; 2) you use only so much of the mark as is necessary for the identification (for example, you use the words but not the font or symbol); and 3) you do not suggest sponsorship or endorsement by the trademark holder. This applies even if the use is commercial. Your use should not confuse buyers as to the source of the product and your use cannot dilute the trademark.

For example, an auto repair shop specialized in repairing Volkswagen cars. The shop’s ads used the work “Volkswagen,” a trademark. The court ruled that the shop was not liable for trademark infringement so long as they did not claim or imply that they had any business relationship with the Volkswagen Company.