Trademark Law - Fair Use - INTA - Cairns v. Franklin Mint Co

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Source:
http://www.inta.org/membersonly/library/attachments/tmr/vol94_no1_a1.pdf
Some emphasis has neen added.

d. Nominative and Fair Descriptive Use
The past year (1993-1994) produced several interesting opinions from Ninth Circuit courts on the extent to which defendants may make permissible uses of plaintiffs’ marks. Although an extrastatutory concept, the nominative use defense has assumed increasing importance over the past few years. As the first court to have given the doctrine its name, the Ninth Circuit had the opportunity to clarify the distinction between nominative use and what it deemed “classic” fair use in a case brought by the executors of the estate of the late Princess of Wales against a manufacturer of unlicensed memorabilia:
"The distinction between classic and nominative fair use is important for two reasons: (1) classic and nominative fair use are governed by different analyses; and (2) the classic fair use analysis only complements the likelihood of customer confusion analysis . . . whereas the nominative fair use analysis replaces the [likelihood of confusion] analysis.
. . . .
. . . [C]ourts should use the . . . nominative fair use analysis in cases where the defendant has used the plaintiff’s mark to describe the plaintiff’s product, even if the defendant’s ultimate goal was to describe his own product. By contrast, courts should use the traditional classic fair use analysis in cases where the defendant has used the plaintiff’s mark only to describe his own product, and not at all to describe the plaintiff’s product. Cairns v. Franklin Mint Co., 292 F.3d 1139, 1150, 1152, 63 U.S.P.Q.2d 1279, 1286, 1287 (9th Cir. 2002).

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