Trademark Fair Use and Parody Intro to IP Prof Merges

Facts Use of “micro color” in descriptive advertising Why no priority issue? Lasting Impressions: TM owner

Trademark fair use Defense where ‘‘use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark,... of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin....’’ Lanham Act sec. 33, 15 USC §1115(b)(4).

Circuit split Fair use is not a defense where there is proof of likelihood of confusion Fair use may nevertheless be a defense, even where there is (some) likelihood of confusion

Supreme Court Fair use may be a defense even where there is some likelihood of confusion Rationale: – Defense makes no sense if defendant has burden of proving no likelihood of confusion – Descriptive marks are an exception to general rule that useful language is not trademarkable

Mattel v. MCA Use of trademark in a song Parody right “Nominative use” defense

What is nominative use? Non-TM use “New Kids on the Block” case

New Kids on the Block

Parody defense “Target” vs. “weapon” distinction Cat in the Hat case Same as for copyright law