12:56 Feb 7, 2009 |
English to German translations [PRO] Law/Patents - Law: Patents, Trademarks, Copyright / Markenrecht | |||||||
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| Selected response from: Andreas Pompl Germany Local time: 21:18 | ||||||
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4 +1 | s.u. |
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s.u. Explanation: nominative fair use = berechtigter Markengebrauch zur Beschreibung der fremden/klägerischen Marke (bei vergleichender Werbung etc.) classic fair use = berechtigter Markengebrauch zur Beschreibung der eigenen Marke (zur Beschreibung und Abgrenzung der eigenen produkte und Dienstleistungen) Vgl. die Unterscheidung unten: The Ninth Circuit recognizes two types of fair use: classic fair use and nominative fair use. [27] Classic fair use is where the defendant uses the plaintiff's mark to describe the defendant's mark. [28] Nominative fair use, by contrast, is where the defendant uses the plaintiff's mark to describe the plaintiff's mark. [29] The purpose of nominative fair use is "generally for the 'purposes of comparison, criticism or point of reference.'" [30] Nominative fair use was first recognized in New Kids on the Block v. New America Publishing, Inc., where the Ninth Circuit held that the defendants' use of the plaintiffs' trademarked band name, "New Kids on the Block," in their public opinion poll was nominative fair use. [31] The distinction between classic and nominative fair use is important because each requires a different analysis and because "the classic fair use analysis only complements the likelihood of customer confusion analysis �." [32] By contrast, the nominative fair use analysis essentially replaces a likelihood of confusion analysis. [33] The nominative fair use analysis is appropriate "where a defendant has used the plaintiff's mark to describe the plaintiff's product, even if the defendant's ultimate goal is to describe his own product." [34] The three elements of "nominative fair use" are the following: First, the [plaintiff's] product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the plaintiff's product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder. [35] Classic fair use, on the other hand, necessitates a different analysis. To assert a classic fair use defense, a defendant must prove the following: "[First], defendant's use of the term is not as a trademark or service mark; [second, the] defendant uses the term 'fairly and in good faith'; and [third, the defendant uses the term] 'only to describe' its goods or services." [36] The defendant who successfully asserts a fair use defense may ultimately be allowed to use the mark, regardless of whether or not the defendant is a competitor of the plaintiff. As a result, the possibility of a likelihood of confusion between the two products exists. The federal circuits have split on how to resolve this problem. Reference: http://www.bc.edu/bc_org/avp/law/st_org/iptf/articles/conten... |
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