Are there any defenses to trademark infringement?

Yes, there are defenses to trademark infringement in Washington. Generally, a person accused of trademark infringement in Washington can claim they have a “fair use” defense. Fair use refers to the use of a trademark in a manner that does not infringe upon the original owner’s rights. This is often seen in situations such as using a trademarked name to refer to a product or service. For example, if a person sells batteries and calls them “Duracells,” that person is infringing on the trademarked name Duracell. However, if the person reviews batteries on their blog and refers to those batteries as “Duracells,” they are likely using the trademarked name fairly. Another defense to trademark infringement is the “nominative use” defense. This states that a person can use another’s trademarked name when referring to the other person’s products or services. For example, if a person is writing a blog about different TV brands, they can refer to a particular brand’s name without infringing on the trademark of that brand. Finally, a person accused of trademark infringement can use a “parody” defense. This defense states that the accused person was making a statement or comment about the original trademarked product or service by their use of the trademarked name. In this case, the accused person must be able to demonstrate that their use of the trademarked name was actually a parody or commentary on the product or service. In short, fair use, nominative use, and parody are all defenses to trademark infringement in Washington.

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