Nespresso-Capsules

Here is the first factor from the Ninth Circuit nominative fair use test, courtesy of the New Kids on the Block case:

First, the product or service in question must be one not readily identifiable without use of the trademark;

Here’s the first factor from yesterday’s Second Circuit decision:

(1) whether the use of the

Introducing the 2d Circuit Nominative Fair Use Test:

1. Whether plaintiff’s mark is necessary to describe both the plaintiff’s and defendant’s products, “that is, whether the product or service is not readily identifiable without use of the mark;

2. whether the defendant uses only so much of the plaintiff’s mark as is necessary to identify