Certification Mark May Be Infringed Despite Nominative Fair Use, Lack Of Source Confusion

Addressing the use of a certification mark in connection with information systems training, the US Court of Appeals for the Second Circuit reversed and remanded a district court grant of summary judgment for the defendants on the plaintiff's claims of infringement, false designation of origin and false advertising, and unfair competition, finding that confusion as to sponsorship, affiliation or connection may trump a nominative fair use defense. Int'l Info. Sys. Sec. Certification Consortium, Inc. v. Sec. Univ., LLC, Case No. 14-3456 (2d Cir., May 18, 2016) (Pooler, J.).

International Information Systems Security Certification Consortium (ISC²) owns the certification mark CISSP, meaning Certified Information Systems Security Professional. A certification mark is a mark used by a person other than its owner to certify the quality, accuracy or other characteristics of the associated goods or services.