Building a brand is a complex process that requires business owners to navigate numerous laws. A key aspect of this process is establishing and protecting your trademarks. But what happens if another entity starts using your trademark?
You might think it’s always illegal, but that’s not the case. There are circumstances where others can legally use your trademark due to a principle known as fair use. It permits the use of protected works in certain situations without the rights holder’s permission.
Descriptive fair use
In trademark law, a type of fair use is known as descriptive fair use. This allows others to use your trademark if it’s descriptive and they use it to describe their product, not refer to yours. For example, if you own a software development company named “Efficient Coding,” which you’ve trademarked, another software company can’t use Efficient Coding as their brand name. However, they can say, “We offer efficient coding solutions.” Here, efficient coding describes their services, not your brand.
Nominative fair use
Another type of fair use is nominative fair use, which allows others to use your trademark to refer to your product for comparison, criticism or reference. One scenario where another person or entity can use your trademark without permission is for comparative advertising. If a tech review blog uses your trademarked software name to compare your product with another software product on the market, this is typically considered nominative fair use. The blog isn’t trying to mislead readers into thinking your company sponsors or endorses their content. Instead, they’re merely using your trademark to identify your software for comparison purposes – your trademark acts as a point of reference.
Improper use of your trademark
Thanks to the First Amendment, people can use your trademark when reviewing, critiquing or commenting on your products or services. While they can be honest, they should not tarnish your reputation or diminish your trademark’s distinctiveness. If someone uses your trademark outside these scenarios or causes confusion about the product source, you can file a lawsuit for trademark infringement. It’s crucial to monitor your trademark use and take action if you believe someone is misusing it. This protects your business assets from unauthorized use.