Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From ETW v Jireh Publishing, 76 F.3d 743 (6th Cir. 1996) The Lanham Act provides a defense to an infringement claim where the use of the mark "is a use, otherwise than as a mark, ... which is descriptive of and used fairly and in good faith only to describe the goods ... of such party[.]" 15 U.S.C. §1115(b)(4); see San Francisco Arts and Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 565 (1987); Herman Miller, Inc. v. Palazzetti Imports and Exports, Inc., 270 F.3d 298, 319 (6th Cir. 2001)("Under the doctrine of 'fair use,' the holder of a trademark cannot prevent others from using the word that forms the trademark in its primary or descriptive sense.")(emphasis in the original); Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267, 270 (2nd Cir. 1995)("[F]air use permits others to use a protected mark to describe aspects of their own goods[.]"). In evaluating a defendant's fair use defense, a court must consider whether defendant has used the mark: (1) in its descriptive sense; and (2) in good faith. Victoria's Secret Stores v. Artco Equip. Co.,, 194 F. Supp.2d 704, 724 (S.D. Ohio 2002); see also Cairns v. Franklin Mint Co., 292 F.3d 1139, 1151 (9th Cir. 2002). A celebrity's name may be used in the title of an artistic work so long as there is some artistic relevance. See Rogers v. Grimaldi, 875 F.2d 994, 997 (2nd Cir. 1989); New York Racing Ass'n v. Perlmutter Publ'g, Inc., No. 95-CV-994, 1996 WL 465298 at *4 (N.D.N.Y. July 19, 1996) (finding the use of a registered mark on the title of a painting protected by the First Amendment). The use of Woods's name on the back of the envelope containing the print and in the narrative description of the print are purely descriptive and there is nothing to indicate that they were used other than in good faith. The prints, the envelopes which contain them, and the narrative materials which accompany them clearly identify Rush as the source of the print.(3) Woods is mentioned only to describe the content of the print.