Trademark Law and Practice

Classic fair use requires that the mark be used:

1. other than as a mark,
2. in a descriptive sense, and
3. in good faith.

When a defendant uses a trademark to describe the plaintiff's product, even if his end goal is to describe his own product, he is entitled to a nominative fair use defense provided he meets the following three requirements:

1. the product or service in question must be one not readily identifiable without use of the trademark;
2. only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and
3. the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.