What is “fair use” of a trademark?

Fair use of a trademark is a legal concept that allows limited, non-commercial use of a trademarked term. This concept is often used in literature, music, and other media to help the public recognize and identify parts of the work. In Indiana, the fair use of a trademark is governed by state law as well as Federal law (the Lanham Act). In order to be fair use, the use of the trademarked term must not create confusion in regards to who owns the brand associated with the trademark. Generally speaking, the use of the trademark must be descriptive in nature (not as a brand name or endorsement), and should not mislead consumers or be used to promote a product or service. The courts also consider other factors when deciding if a particular use of a trademark can be labeled fair use. For example, if someone is talking about a trademarked product or service in an article or other medium, they may be able to use the trademarked term if the use is for editorial or informational purposes. However, if the trademarked term is used to sell or promote a product, this would likely not be considered fair use. Under Indiana law, fair use of a trademark does not require the trademark owner’s consent and the trademark owner cannot stop the use of the trademark as long as it is in compliance with the fair use criteria. However, the trademark owner can still sue if the defendant is using the trademark to create customer confusion in regards to the origin or affiliation of the trademarked product.

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