Is it always an infringement to use someone else’s trademark?

infringement_neon

No. Because ownership of a trademark is not absolute. Just as the fair use defense exists in US copyright law, there are times when the use of a trademark without permission from the owner does not constitute infringement.

The purpose of a trademark is to identify the source of goods or services. It is to prevent consumer confusion in the marketplace. However, as noted by New York attorney Brian Farkas at the website, NOLO, “the use of a trademark does not necessarily qualify as an infringement if the user is not using the trademark as a mark.” (italics added)

When You Don’t Need Permission to Use Another Owner’s Trademarks

He states that “if you use the mark for informational or editorial purposes to identify specific products and services, or if your use is part of an accurate comparative product statement,” it could be fair use. He also gives some good examples of such fair use.

Further, use of a trademark in parody can be considered fair use. A photographer’s use of the Barbie mark was acknowledged as fair use by the Ninth Circuit Court of Appeals (2003).

Mattel Inc., a Delaware Corporation v. Walking Mountain Productions, a California Business Entity…, 353 F.3d 792 – CourtListener.com

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