14
Oct/05

Third Circuit Articulates Nominative Fair Use Test


“In this Circuit, we have today adopted a test for nominative fair use in which a court will pose three questions: (1) Is the use of the plaintiff’s mark necessary to describe both plaintiff’s product or service and defendaant’s product or service? (2) Is only so much of the plaintiff’s mark used as is necessary to describe plaintiff’s products or services? (3) Does the defendant’s conduct or language reflect the true and accurate relationship between plaitniff’s and defendant’s products or services?  If each of these questions can be answered in the affirmative, the use will be considered a fair one, regardless of whether likelihood of confusion exists.”

From Century 21 Real Estate v. Lendingtee, Inc., No. 03-4700 (3d Circuit Oct. 11, 2005).