In the trademark context, nominative fair use is more or less the same. A great example is the rap group 2 Live Crew using Roy Orbison's “Oh, Pretty Woman” as the basis for a song of their own that parodied plain-vanilla rock-n-roll. Basically, when you can't say what you need to say without using some portion of the copyrighted work, you can use as much as you absolutely need to say it. For examples, read on.Įxception to the Rule #1: Nominative fair useįirst of all, there is a fairly well-recognized carve-out to infringement, called “nominative fair use.” This concept borrows from copyright's “fair use” exception, which allows certain uses to be made of copyrighted work without permission or payment-uses like news reporting, parody and others-uses that Congress and the courts have determined are either protected by the First Amendment, do not harm the market for the original work, or some combination of both. There is one notable exception to this: when the unauthorized trademark is not a trademark use at all. That is, if I am likely to believe that goods or services from Company B (the unauthorized user) are either from or endorsed by Company A (the holder of the registered mark), then Company A can sue Company B for trademark infringement. United States law allows the holders of federally registered trademarks to sue others who use those marks without permission, when the use in question causes a “likelihood of confusion” to actual or potential customers. Basically, if you paint, wear, or otherwise display something that a company believes to be its trademark (especially if that company happens to be Disney), you may have opened yourself up to a claim of trademark infringement. Disney sues a couple for wearing costumes of Tigger and Eeyore from Winnie-the-Pooh to a party. We've all heard the stories: Disney sends Florida daycare centers “cease-and-desist” letters when the daycare centers paint their walls with pictures of Mickey and Minnie Mouse and their dog Goofy.
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