What is “fair use” of a trademark?

Fair use of a trademark is an exception to the general rule that no one can use, without permission, a trademark that is owned by someone else. In Washington, fair use of a trademark is a legal principle that allows some limited use of another’s trademark without permission, such as in comparative advertising, criticism, or parody. The fair use principle is designed to limit the power of trademark owners and to allow others to use the mark in creative and socially beneficial ways. The fair use defense incorporates the idea that a trademark serves a greater purpose than just to designate the origin of particular goods or services. It also allows others to use the trademark in ways that may not be considered to create any confusion as to the source of the goods or services. The main factor considered when determining whether a use is fair is the purpose and character of the use. Factors such as the amount and substantiality of the piece taken, the effect of the use upon the potential market for or value of the trademarked work, and the nature of the copyrighted work, may also be taken into consideration. Essentially, a court will step in if it believes there is a danger of people being misled as to a certain product’s source as well as a danger of diminished commercial value or illegitimately competing with the owner of the trademark.

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What is “fair use” of a trademark?

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