Statutory And Nominative Fair Use Under The Lanham Act

• Statutory Fair Use

• Statutory Fair Use: A True Defense?

• Is Prominent Use Fair?

• Can Trade Dress Be the Subject of Fair Use?

• Nominative Use As Fair Use

• Statutory Or Nominative Fair Use, Does It Matter?

• Will The Logic Of Permanent Make-Up Apply To Nominative Fair Use Cases?

The concept of fair use in copyright law is well known to intellectual property practitioners. An analogous concept exists in trademark law, where the use of another's mark is deemed "fair". As in copyright law, the public benefit of allowing the use is perceived to override any alleged detriment to the trademark owner, and is thus deemed to be a fair use.

The Lanham Act contains a statutory fair use provision, § 33(b)(4), 15 U.S.C. § 1115(b)(4). However, because of the narrow scope of the statutory provision, three additional, judge-made categories have arisen in which use of another's trademark may be considered non-infringing. These are: (1) nominative fair use; (2) comparative