Lesson 13: Defenses to Trademark Infringement
In the realm of trademark law, understanding the various defenses to trademark infringement is crucial. These defenses can protect a defendant from liability and offer legal grounds to contest an infringement claim. This lesson explores the most common defenses to trademark infringement, including fair use, parody, and more.
Common Defenses to Trademark Infringement
There are several defenses available to a defendant in a trademark infringement case:
- Fair Use: This defense applies when a trademark is used in a descriptive manner, rather than as a source identifier. For example, using the term "apple" to describe the fruit rather than the brand.
- Nominative Fair Use: This occurs when a trademark is used to refer to the trademarked goods or services themselves, especially when no other term can describe the product adequately.
- Parody: A parody is a humorous or satirical imitation of a trademark, brand, or product.
- First Sale Doctrine: Once a trademarked item is sold, the buyer has the right to resell that item. This defense is often cited in cases involving resellers.
- Genericness: If a trademark becomes generic and is commonly used to describe an entire category of products, it can no longer be protected.
Fair Use
Fair use is one of the most important defenses in trademark law. It allows the use of a trademark without permission under specific conditions:
Example: Using the term 'apple' in a descriptive manner to refer to the fruit and not the brand.
Nominative Fair Use
Nominative fair use is when a trademark is used to identify the trademarked product or service. This is particularly relevant when no other words can describe the product adequately.
Example: Using 'Toyota' to refer to a Toyota car in a review.
Parody
Parody is a defense that allows for the humorous or satirical imitation of a trademark. It falls under free speech rights and is protected when it distinguishes itself from the original trademark.
First Sale Doctrine
The first sale doctrine protects resellers of trademarked products. Once a trademarked item is sold, the new owner is entitled to resell that item without violating trademark rights.
Example: Selling a used 'Nike' shoe on eBay.
Genericness
A trademark can lose its protection if it becomes generic, meaning it is commonly used to describe an entire category of products rather than a specific source.
Example: 'Aspirin' was once a trademarked brand but became generic over time.
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