Trademark Patent Lawyers

Use of another party’s mark

Trademark Fair Use: Descriptive and Nominative Use Questions

Using another party’s wording can raise different questions depending on whether it describes your own goods or identifies the trademark owner’s product. Context and likely confusion matter.

Two recurring frameworks

QuestionDescriptive useNominative use
Why is the wording used?To describe a characteristic, quality, place, or functionTo identify the trademark owner or its product for reference
What evidence matters?Sentence context, ordinary meaning, typography, packaging, and alternativesNeed to identify the product, amount used, logos, presentation, and sponsorship signals
Central riskUse functioning as a source identifierUse implying affiliation, approval, or sponsorship

Capture the whole presentation

  • Save the complete page, ad, video, packaging, metadata, and surrounding text.
  • Record dates, audience, channels, targeting, and changes.
  • Identify your own branding and any disclaimers.
  • Note how much of the third-party mark, logo, trade dress, or product image appears.
  • Preserve complaints, confusion evidence, platform notices, and communications.

Questions for counsel

Ask which jurisdiction’s law and test applies, whether the use is commercial or editorial, what confusion evidence exists, whether other claims are implicated, and what changes could reduce risk without making the communication inaccurate.

Official sources

Use current official records for dates, status, credentials, and filing requirements.