For fair use in copyright law, see Fair use

Fair use

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...

.

In the United States, trademark

Trademark

A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...

 law includes a fair use defense, sometimes called "trademark fair use" to distinguish it from the better-known fair use

Fair use

Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...

 doctrine in copyright. As with copyright law, the trademark fair use doctrine is premised in significant part on the First Amendment guarantees of free speech. Fair use is consistent with the more limited protection granted to trademarks, generally specific only to the particular product market and geographic area of the trademark owner.

Most trademarks are adapted from words or symbols already common to the culture, as Apple Computer

Apple Computer

Apple Inc. is an American multinational corporation that designs and markets consumer electronics, computer software, and personal computers. The company's best-known hardware products include the Macintosh line of computers, the iPod, the iPhone and the iPad...

 is from apple

Apple

The apple is the pomaceous fruit of the apple tree, species Malus domestica in the rose family . It is one of the most widely cultivated tree fruits, and the most widely known of the many members of genus Malus that are used by humans. Apple grow on small, deciduous trees that blossom in the spring...

, instead of being invented by the mark owner (such as Kodak). Courts have recognized that ownership in the mark cannot prevent others from using the word or symbol in these other senses, such as if the trademark is a descriptive word or common symbol such as a pine tree. This means that the less distinctive or original the trademark, the less able the trademark owner will be to control how it is used.

A nonowner may also use a trademark nominatively

Nominative use

Nominative use, also "nominative fair use", is a legal doctrine that provides an affirmative defense to trademark infringement as enunciated by the United States Ninth Circuit, by which a person may use the trademark of another as a reference to describe the other product, or to compare it to their...

—to refer to the actual trademarked product or its source. In addition to protecting product criticism and analysis, United States law actually encourages nominative usage by competitors in the form of comparative advertising.

The fair use defense in trademark law is not precluded by the possibility of confusion, according to the U.S. Supreme Court

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

in 2004. However, courts may consider the possibility of confusion in analyzing whether a use is fair or not. Intent to sow confusion is also relevant; hence, the general rule that no more of the trademark should be used than necessary for the legitimate purpose. For instance, use of a word mark is preferred to a logo, and a word mark in the same style of type as surrounding text is preferred to a word mark in its trademarked distinctive type.