What is “fair use” of a trademark?

Fair use of a trademark is a legal concept that allows people to use a trademark without needing to obtain permission from the owner. In Massachusetts, fair use of a trademark is more likely to be allowed if the use is noncommercial in nature, such as for criticism, comment, news reporting, teaching, scholarship, or research. When using a trademark for these purposes, it must be done in a way that does not create confusion among the public or suggest that there is an endorsement or sponsorship from the trademark holder. In general, when using a trademark in a noncommercial way, it should be used in a descriptive manner, rather than as a brand. For example, a theater could advertise that they will show a movie featuring the “Famous Actor,” rather than using the trademarked name if the actor has one. Fair use of a trademark does not take away any rights from the trademark holder. The owner’s exclusive right to use the trademark in commerce remains unchanged even when someone else is using the mark in a noncommercial way. Ultimately, whether a use is considered fair use in Massachusetts will depend on the specific situation and the opinion of the court. If in doubt, it is advisable to reach out to a lawyer specializing in trademark law for guidance.

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What is “fair use” of a trademark?

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