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Nominative use

Nominative use, also referred to as nominative fair use, is a doctrine in United States trademark law that allows a party to use another entity's registered trademark to identify or refer to the trademark owner's actual goods or services without implying affiliation, sponsorship, or endorsement by the owner.^[1] This defense serves as a limitation on trademark infringement claims under the Lanham Act, balancing the owner's exclusive rights with the public's interest in free expression and accurate identification of products.^[2] Originating in the Ninth Circuit's 1992 decision in New Kids on the Block v. News America Publishing, Inc., the doctrine was articulated to address situations where no alternative term exists to describe the trademarked item, such as in comparative advertising, news reporting, or resale contexts. The core test for nominative fair use, as established by the Ninth Circuit, requires three elements: first, the product or service cannot be readily identified without using the trademark; second, only the minimum amount of the mark necessary for identification is used; and third, the usage does not suggest any sponsorship or endorsement by the trademark owner.^[2] This framework displaces traditional likelihood-of-confusion analyses in many cases within the Ninth Circuit, treating nominative use as an affirmative defense that evaluates the defendant's intent and context directly.^[3] Courts have applied the doctrine broadly to protect activities like parody, criticism, and academic commentary, as long as consumer confusion is avoided.^[4] While the Ninth Circuit's test remains influential, other federal circuits have adopted varying approaches, creating a split in U.S. law. For instance, the Third Circuit integrates nominative use factors into the broader likelihood-of-confusion inquiry rather than as a standalone defense, as seen in Century 21 Real Estate Corp. v. LendingTree, Inc. (2005).^[5] The Second Circuit, in cases like International Information Systems Security Certification Consortium, Inc. v. Security University, LLC (2016), has declined to fully endorse the Ninth Circuit's rigid three-part test, instead weighing nominative elements alongside traditional confusion factors.^[6] Despite these differences, the doctrine consistently emphasizes referential use over source-identifying or promotional exploitation, promoting competition and truthful communication in commerce.^[7]

Overview

Definition

Nominative use, also referred to as nominative fair use, is a legal doctrine in trademark law that functions as a fair use defense against claims of trademark infringement. It allows a party to use another entity's registered or unregistered trademark solely for the purpose of identifying or referring to the trademark owner's goods or services, without implying any connection, sponsorship, or endorsement by the trademark owner.^[4] At its core, nominative use permits referential applications of a trademark when the goods or services cannot be readily or accurately identified by alternative descriptors, ensuring that such references remain limited to what is reasonably necessary for identification. This principle supports truthful communication in contexts where the trademark itself is the most precise or practical way to denote the referenced product or service.^[4] By enabling this limited referential use, nominative use prevents trademark owners from monopolizing the accurate identification of their own branded goods or services, thereby promoting fair competition and protecting consumers' access to informative discourse about branded items in the marketplace.^[4] This doctrine aligns with broader fair use principles in intellectual property law, which seek to balance exclusive rights with public interests in expression and commerce.^[8]

Purpose and Rationale

The doctrine of nominative use serves a critical policy goal in trademark law by allowing necessary, truthful references to another party's marks in non-deceptive contexts, thereby preserving the integrity of source identification while enabling essential marketplace communication.^[9] This approach ensures that trademark holders cannot prevent necessary referential uses of their marks to identify their own branded goods or services, avoiding an overbroad extension of intellectual property rights that could stifle public discourse.^[9] Rooted in First Amendment protections for commercial speech, the rationale for nominative use emphasizes the need to safeguard expressive freedoms against unwarranted censorship imposed by trademark enforcement, particularly when such uses involve neutral or referential identification without implying endorsement.^[10] By recognizing these protections, the doctrine balances the prevention of consumer confusion with the constitutional imperative to permit truthful statements in advertising and commentary, ensuring that speakers are not deterred from engaging in valuable social and commercial exchanges.^[11] Economically, nominative use justifies its existence by facilitating informed consumer choice and promoting competition, as it allows for accurate product comparisons and identifications by various parties without the need for cumbersome alternatives that could increase search costs or hinder market efficiency.^[12] This framework supports broader economic welfare by enabling parties to reference another party's marks in ways that enhance transparency and utility for buyers, ultimately spurring innovation and quality improvements without granting trademark owners undue control over competitive speech.^[12]

Legal Elements

Necessity of the Trademark

The first prong of the nominative use test requires that the product or service in question cannot be readily or easily identified without reference to the trademark, establishing the necessity of its use for accurate identification.^[2] This element ensures that nominative use is limited to situations where the mark serves an essential referential function, rather than as a source identifier for the defendant's own goods or services.^[4] Within the broader three-part framework for nominative fair use, this prong acts as a threshold to confirm that no viable alternative means of description exists.^[2] Examples of such necessity commonly arise in resale markets, where sellers must use the trademark to denote the genuine branded item, as generic terms like "luxury handbag" fail to convey the specific source and authenticity that consumers seek.^[13] Similarly, in repair services, technicians reference the trademark to indicate compatibility with the original product, such as specifying "iPhone" repairs rather than merely "smartphone" services, since broader descriptors do not adequately identify the exact item requiring service.^[14] In these contexts, the mark uniquely signals the product's origin, enabling clear communication without which consumers could not effectively evaluate or access the relevant goods or services.^[4] Courts assess the "readily identifiable" threshold by determining whether alternative generic descriptions would suffice to avoid consumer confusion while still allowing identification, often concluding that trademarks are indispensable when omitting them would hinder precise reference or comparison.^[2] This evaluation focuses on practicality: if no other effective way exists to name or describe the plaintiff's product—such as using cumbersome circumlocutions that obscure meaning—the necessity prong is satisfied.^[14] For instance, vague terms may not capture the mark's role in denoting quality or compatibility, underscoring why judicial scrutiny emphasizes functional alternatives over mere possibilities.^[13]

Scope of Use

The second element of the nominative fair use doctrine limits the defendant's use of the trademark to only as much of the mark as is reasonably necessary to identify the plaintiff's product or service.^[15] This prong, part of the three-part test established in New Kids on the Block v. News America Publishing, Inc., ensures that the referential use does not overshadow or mimic the trademark holder's branding.^[15] For instance, a watch repair service may permissibly use the term "Rolex" once in an advertisement to specify that it services genuine Rolex watches, but repeated or prominent displays of the mark could exceed this boundary.^[16] Guidelines for determining reasonable necessity emphasize restraint in application. The mark must not be altered in any way, such as through stylized fonts or modifications that mimic the original design, as this could transform the use into something suggestive of affiliation rather than mere identification.^[17] Additionally, the use should avoid incorporating extra words or phrases that imply the quality or endorsement of the defendant's own services, keeping the focus strictly on product identification.^[17] Usage is thus confined to the nominal role of naming the referenced goods, without expansion into promotional or decorative elements. Courts evaluate compliance with this element through several key factors, including the prominence of the mark in the defendant's materials, the frequency of its appearance, and the overall context of the use. Prominence is assessed by whether the mark is displayed in a way that draws undue attention, such as in bold or oversized lettering on a book cover, which failed the test in Toho Co., Ltd. v. William Morrow & Co. because it replicated the stylized "GODZILLA" mark excessively.^[17] Frequency considers how often the mark appears; limited instances for identification purposes are favored, while repetitive use across multiple pages or elements may indicate overreach, as seen in Ty, Inc. v. Publications International, Ltd. where frequent Beanie Baby references in a price guide suggested commercialization beyond necessity.^[18] Context examines the surrounding presentation to confirm the use remains referential, ensuring it does not blend into the defendant's branding or imply anything more than factual identification.^[18] These considerations collectively prevent the doctrine from shielding uses that could confuse consumers about source or affiliation.

Absence of Endorsement

The third element of the nominative fair use defense requires that the defendant's use of the trademark does not suggest sponsorship, endorsement, or affiliation by the trademark owner. This prong ensures that the reference to the mark remains purely nominative, without implying any commercial connection that could mislead consumers. Courts evaluate this element by examining whether the overall context of the use avoids creating a false impression of approval or partnership.^[19] To determine if a use suggests endorsement, courts consider several key factors, including the advertising format, the juxtaposition of marks, and the overall impression conveyed to consumers.^[19] The advertising format is assessed based on the prominence and presentation of the mark; for instance, if the mark is displayed in a way that dominates the layout or mimics the owner's branding style, it may imply sponsorship. Juxtaposition refers to the proximity and arrangement of the defendant's mark relative to the plaintiff's, where close association without clear separation can foster perceptions of affiliation. The overall impression evaluates the holistic effect on the audience, taking into account contextual elements like disclaimers stating "not affiliated with" or "no endorsement by" the trademark owner, which can mitigate risks of confusion. If the third prong is not satisfied—meaning the use implies endorsement and generates consumer confusion—the nominative fair use defense fails, potentially exposing the defendant to liability for trademark infringement under the Lanham Act. In such cases, courts may grant remedies including injunctions against further use or damages based on the likelihood of confusion.

Historical Development

Foundational Cases

The doctrine of nominative use in trademark law traces its roots to earlier Ninth Circuit decisions addressing the permissible identification of individuals or products without implying endorsement or confusion. In Smith v. Montoro, the court recognized a claim under the Lanham Act where an actor's name was removed from film credits and replaced with another, constituting reverse passing off by misattributing the performance, but implicitly affirmed the necessity of accurate name use in credits to identify the true performer without misleading consumers.^[20] This case highlighted the importance of nominative references to avoid liability when such identification is essential and non-deceptive. The foundational articulation of nominative fair use as a distinct defense emerged in New Kids on the Block v. News America Publishing, Inc., where the Ninth Circuit addressed a trademark infringement suit brought by the boy band New Kids on the Block against two newspapers for using the group's name in paid telephone polls soliciting public opinions on band members.^[21] The newspapers had established a "900" number service allowing callers to vote on questions like "which kid is the sexiest," generating modest revenue from call fees, which the band claimed implied unauthorized endorsement.^[21] The court reversed summary judgment for the defendants on other grounds but introduced nominative fair use to protect references to a trademarked product where no alternative descriptor exists, distinguishing it from classic descriptive fair use, which applies when a mark describes the defendant's own goods rather than the plaintiff's.^[21] In establishing the doctrine, the Ninth Circuit outlined a three-part test for nominative use: first, the product or service cannot be readily identified without using the trademark; second, the defendant uses only as much of the mark as reasonably necessary to identify the plaintiff's product; and third, the defendant does nothing to suggest sponsorship or endorsement by the plaintiff.^[21] Applying this test, the court found the newspapers' use satisfied all elements, as the band's name was the only practical way to reference the group in the polls, the usage was minimal and factual, and no implication of affiliation arose, thereby defeating the infringement claim without requiring proof of no likelihood of confusion.^[21] This framework filled a doctrinal gap by permitting referential uses that advance free speech and market information while safeguarding against consumer deception.^[22]

Evolution and Adoption

Following the Ninth Circuit's establishment of the nominative fair use doctrine in New Kids on the Block v. News America Publishing, Inc. (1992), which introduced a three-part test to evaluate such uses, the doctrine saw significant post-1992 developments within that circuit, particularly in adapting to emerging technologies. In Toyota Motor Sales, U.S.A., Inc. v. Tabari (2010), the Ninth Circuit extended nominative fair use to domain names, holding that auto brokers' websites using "lexus" in URLs like "buy-a-lexus.com" and "buyorleaselexus.com" could qualify if they met the three-part test—namely, the product could not be readily identified without the mark, only so much of the mark was used as reasonably necessary, and no sponsorship or endorsement was suggested—thus vacating a broad injunction against such use.^[23] This application underscored the doctrine's flexibility in online contexts, emphasizing that domain names alone do not inherently imply affiliation.^[23] The doctrine's adoption spread beyond the Ninth Circuit in the early 2000s, leading to variations in how courts integrate it into infringement analysis. The Fifth Circuit was among the first to recognize nominative fair use outside the Ninth, applying it in Pebble Beach Co. v. Tour 18 I Ltd. (1998) as a factor showing no likelihood of confusion when a golf course used trademarks to refer to famous holes, provided the use was descriptive and non-deceptive. Similarly, the Third Circuit adopted it in Century 21 Real Estate Corp. v. LendingTree Inc. (2005), treating nominative fair use as an affirmative defense that modifies the likelihood of confusion factors rather than replacing them.^[24] In contrast, the Second Circuit in International Information Systems Security Certification Consortium, Inc. v. Security University, LLC (2016) weighed the traditional Polaroid likelihood of confusion factors with nominative fair use considerations, including whether (1) the mark identifies the plaintiff's goods or services, (2) the defendant used only as much of the mark as reasonably necessary with no descriptive substitute available, and (3) the use suggests no sponsorship or endorsement by the plaintiff—without classifying it as a separate affirmative defense.^[25] These differences highlight ongoing circuit splits, with some courts (like the Ninth and Fifth) viewing it as inherent to the confusion analysis and others (like the Third) as a distinct defense.^[25] As of 2025, the Supreme Court has not adopted a uniform nominative fair use standard, having denied certiorari in 2017 on the Second Circuit's International Information decision, thereby preserving the circuit splits.^[25] Circuits continue to rely on the doctrine, particularly in digital contexts such as search engines and online advertising, where courts assess keyword uses for nominative fair use to avoid implying endorsement; for instance, the Fourth Circuit in Rosetta Stone Ltd. v. Google, Inc. (2012) discussed its potential applicability to sponsored search ads but remanded for further analysis under likelihood of confusion.^[26] Recent cases reflect this trend, including a 2024 Southern District of Florida ruling in an Earth, Wind & Fire trademark dispute where the defense failed due to inadequate disclaimers in digital promotions, and a 2025 District of Delaware decision allowing nominative fair use to survive summary judgment in an ad data platform case involving referential online use.^[27]^[28]

Applications

Comparative Advertising

Comparative advertising represents a primary application of nominative use, where a trademark holder or third party references a competitor's mark to draw factual or opinion-based comparisons between products or services, thereby promoting competition and enabling consumers to make informed decisions. This practice is protected under the nominative fair use doctrine as long as the reference is necessary for identification, does not imply endorsement or affiliation, and remains truthful without misleading claims.^[4]^[29] In such contexts, the legal elements of nominative use—necessity, minimal scope, and absence of endorsement—are strictly applied to ensure the advertisement identifies the rival product without creating confusion or deception. For instance, a telecommunications company like Verizon may compare its network coverage to AT&T's by stating "better signal than AT&T in rural areas," using the competitor's mark solely for referential purposes and substantiating the claim with data.^[29]^[30] A prominent example is the Pepsi Challenge campaign launched in the 1970s, in which Pepsi conducted blind taste tests and displayed Coca-Cola's trademarked bottle to identify the competing product, allowing viewers to compare flavors directly; this approach exemplifies nominative fair use because it truthfully identified the rival without suggesting partnership or making unsubstantiated superiority claims.^[13] Similarly, pain reliever ads like Advil's comparison to Nurofen, claiming "twice as fast relief" with a footnote disclosing the rival mark's ownership, illustrate permissible use when claims are verified and limited to necessary identification.^[29] Boundaries are critical to avoid liability: advertisements must refrain from false assertions, such as exaggerating a competitor's flaws, and should not prominently feature the rival mark in a way that suggests endorsement or causes consumer confusion. For example, Burger King's 2022 ad falsely claiming its Whopper was larger than McDonald's Big Mac violated these limits by misrepresenting measurements, leading to legal challenges under false advertising laws.^[29]^[30]

Product Reviews and Resale

Nominative use permits reviewers to reference trademarks when identifying and evaluating specific products, ensuring consumers understand the subject of the critique without implying endorsement by the trademark owner. For instance, in technology reviews, phrases like "Canon EOS camera" are commonly employed to denote the exact model under examination, as the product cannot be readily identified otherwise. This application aligns with the nominative fair use doctrine, which requires only as much of the mark as necessary to refer to the goods.^[31] In resale contexts, such as online platforms like eBay or thrift stores, sellers use trademarks to describe authentic secondhand items, facilitating informed purchasing decisions in secondary markets. A prominent example involves luxury goods resellers like The RealReal, which lists items as "Chanel handbag" to confirm authenticity while employing disclaimers to clarify no affiliation with the brand. This practice is protected under nominative fair use provided the goods are genuine and the use does not suggest the reseller is the original source.^[13] Challenges arise in resale scenarios where consumer confusion must be avoided, particularly in verifying product genuineness and limiting mark prominence. In the auto parts industry, aftermarket suppliers reference original equipment manufacturer (OEM) trademarks, such as "compatible with Ford Mustang parts," to specify fit and function without misleading buyers about origin. Courts emphasize authentication processes and clear labeling to mitigate infringement risks, as seen in disputes over luxury resale authentication.^[32]^[13]

Versus Descriptive Fair Use

Descriptive fair use, also known as classic fair use, is a statutory defense under the Lanham Act (15 U.S.C. § 1115(b)(4)) that permits the use of a trademarked term in its primary, descriptive sense to describe the defendant's own goods or services, rather than as a source identifier.^[33] This doctrine applies when the term has acquired secondary meaning as a trademark but is nonetheless used descriptively without creating consumer confusion about origin. For instance, a seller of fruit could use the word "apple" to describe the produce itself, even though "Apple" is a registered trademark for computers and software, as the usage conveys the ordinary descriptive meaning unrelated to the mark's branded source.^[4] In contrast, nominative fair use allows a defendant to reference a competitor's trademark to identify the trademark owner's actual goods or services, typically when the defendant's own product cannot be readily identified without it.^[34] The core distinction lies in the purpose and target: descriptive fair use involves employing the term in a non-trademark capacity to characterize the user's own offerings, whereas nominative fair use entails referential naming of the mark owner's products for comparative or identificatory purposes, often satisfying a three-part test that requires the mark's necessity, minimal usage, and no implication of endorsement.^[4]^[15] Courts prioritize descriptive fair use when a defendant's application of the term fits its ordinary descriptive role for their own goods, reserving nominative fair use for scenarios demanding direct reference to the trademarked product to avoid overlap and ensure doctrinal precision.^[35] This sequential consideration prevents misapplication, as descriptive use negates trademark functionality altogether, while nominative use balances referential needs against potential confusion.

Versus Parody and Expressive Use

Nominative fair use permits the referential use of a trademark to identify the trademark owner's actual goods or services without implying sponsorship or endorsement, distinguishing it from parody, which involves a transformative imitation of the mark for humorous or critical commentary.^[11] In parody cases, the defendant alters the mark or creates a similar one to evoke the original while conveying a different message, often protected under the First Amendment when no consumer confusion arises regarding source or affiliation.^[34] A seminal example is Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, where the Fourth Circuit upheld the use of "Chewy Vuiton" for dog chew toys as a non-infringing parody, as it humorously critiqued luxury branding without suggesting endorsement by Louis Vuitton. The core distinction lies in purpose and alteration: nominative use remains neutral and unaltered, employing only the necessary elements of the mark to refer to the genuine product—such as a repair shop mentioning "Rolex" watches to describe its services—provided it does not suggest affiliation.^[34] Parody, by contrast, transforms the mark into something new for expressive critique, shifting its commercial connotation to commentary, as seen when no referential necessity exists beyond the satirical intent.^[11] Expressive use extends this protection more broadly to artistic, journalistic, or non-commercial contexts, such as referencing trademarks in films or news reports, where the First Amendment safeguards the communication unless it explicitly misleads about sponsorship.^[34] Nominative fair use applies when the use is purely identificatory and meets criteria like the absence of endorsement, but if a purported parody lacks this referential need and instead relies on transformation for its effect, courts analyze it under parody or expressive doctrines rather than nominative fair use.^[34] Hybrid cases, where elements of both overlap, are evaluated separately, often weighing likelihood of confusion against First Amendment interests; for instance, in Rogers v. Grimaldi, the Second Circuit established that expressive uses in artistic works are immune from trademark claims unless they have no artistic relevance or explicitly mislead.^[36] However, the U.S. Supreme Court in Jack Daniel's Properties, Inc. v. VIP Products LLC (2023) clarified that the Rogers test applies only when the mark is not used to designate source; otherwise, traditional infringement analysis governs.^[37] This separation ensures nominative use protects straightforward references while parody and expressive uses safeguard transformative speech.^[11]

Jurisdictional Variations

United States Circuits

In the Ninth Circuit, nominative fair use is governed by a strict three-part test established in New Kids on the Block v. News America Publishing, Inc., which requires that the trademarked product or service cannot be readily identified without using the mark, only so much of the mark is used as reasonably necessary, and the use does not suggest sponsorship or endorsement by the trademark owner. This framework, refined in cases like Playboy Enterprises, Inc. v. Welles, treats nominative fair use as an integral part of the likelihood of confusion analysis rather than a standalone defense, effectively replacing or supplementing the traditional Sleekcraft factors when applicable. The test emphasizes referential use to avoid consumer confusion while permitting necessary identification of the mark holder's goods or services. Other circuits apply nominative fair use more variably, often integrating it directly into the likelihood of confusion inquiry without adopting the Ninth Circuit's discrete test. In the Second Circuit, as articulated in International Information Systems Security Certification Consortium, Inc. v. Security University, LLC, nominative use is not recognized as a separate affirmative defense but is evaluated through the Polaroid multifactor test for confusion, with considerations of referential necessity folded into the overall assessment of similarity, proximity, and bridging the gap between marks. Similarly, the Fifth Circuit, in Pebble Beach Co. v. Tour 18 I Ltd., acknowledges nominative fair use by examining whether the mark is used solely to identify the trademark owner's goods without implying affiliation, but treats it as a component of the confusion analysis under the "digits of confusion" factors rather than an independent affirmative defense.^[38] As of 2025, no uniform federal standard exists for nominative fair use across the circuits, leading to ongoing splits in application. In the Eleventh Circuit, while no binding precedent has formalized the doctrine, district courts have increasingly applied nominative fair use principles in emerging digital contexts, such as online promotions and social media references to trademarks, often drawing from the Ninth Circuit's test absent circuit-specific guidance; for instance, in Earth, Wind & Fire IP, LLC v. Substantial Music Group LLC, the doctrine was central to resolving infringement claims involving band alumni promotions that extended to digital platforms.^[39]

International Equivalents

In Canada, the doctrine of honest referential use serves as an equivalent to nominative fair use, permitting the use of a competitor's trademark in comparative advertising or product identification provided it is truthful, non-deceptive, and unlikely to cause confusion or depreciate the mark's goodwill under section 22(1) of the Trademarks Act. This defense is implied through judicial interpretation rather than explicit statutory language, emphasizing that such use must be "honest" and limited to necessary identification without implying endorsement or affiliation. For instance, in the Supreme Court of Canada's decision in Veuve Clicquot Ponsardin v. Boutiques Cliquot Ltée, the court examined whether a clothing retailer's use of a similar name to the famous champagne mark depreciated its goodwill, ultimately finding infringement but articulating factors like lack of confusion and referential intent that inform permissible boundaries for honest comparative contexts. Within the European Union, referential use under Article 14(1)(c) of the Trade Marks Directive (EU) 2015/2436 provides a close parallel, allowing third parties to use a registered trademark to identify the proprietor's goods or services as mere references, such as in comparative advertising or resale, as long as the use is non-deceptive, indicates clear distinction from the mark owner, and does not imply endorsement or create a likelihood of confusion. This limitation on trademark exclusivity balances proprietor rights with market freedoms, requiring that the use be "in accordance with honest practices in industrial or commercial matters" and necessary for the third party's legitimate interests. Recent Court of Justice of the European Union rulings, such as in Inditex, SA v. Buongiorno Myalert SA (C-361/22) and Audi AG v. GQ sp. z o.o. (C-334/22), have clarified the conditions for the referential use exception under Article 14(1)(c), stressing that it applies only where the use is necessary to identify the proprietor's goods or services, complies with honest practices in industrial or commercial matters, and does not take unfair advantage of or harm the trade mark's functions, as seen in non-confusing referential scenarios like certain product comparisons.^[40] Australia and the United Kingdom adopt frameworks akin to the EU's referential use doctrine. In Australia, section 122(1)(d) of the Trade Marks Act 1995 provides a defense for the use of a trade mark in good faith to indicate the intended purpose of goods or services or other characteristics, such as in comparative advertising, provided the use takes no unfair advantage of and is not detrimental to the distinctive character or repute of the trade mark, integrated with consumer protection standards under the Australian Consumer Law. Similarly, in the UK, section 11(2) of the Trade Marks Act 1994 limits the effects of a registered trade mark to permit referential use, such as indications of the kind, quality, or intended purpose of goods or services (including in comparative advertising), provided the use is in accordance with honest practices in industrial or commercial matters and does not impair the trade mark's indication-of-origin function, as retained and aligned with the EU directive post-Brexit.^[41]^[42] In Asia, equivalents to nominative use are more limited, with jurisdictions like China prioritizing anti-confusion principles over broad fair use defenses. Under Article 59 of China's Trademark Law, nominative or descriptive use is permitted only for legitimate explanations of goods without implying affiliation or causing consumer misidentification, but courts apply a strict likelihood-of-confusion test, often rejecting referential claims in comparative contexts unless minimal and non-commercial in nature. This narrower approach reflects a focus on robust trademark protection amid rapid market growth, contrasting with more permissive Western doctrines.

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[33]
https://www.law.cornell.edu/uscode/text/15/1115
[34]
Nominative Fair Use and Other Defenses to Trademark Infringement
Jun 8, 2022 · Nominative Fair Use. The nominative fair use doctrine refers to the use of a protected trademark to describe or “name” the protected trademark ...Descriptive Trademark Fair Use · Nominative Fair Use · Expressive UseMissing: definition | Show results with:definition
[35]
15.24 Defenses—“Classic” Fair Use (15 U.S.C. § 1115(b)(4)) | Model
The Ninth Circuit identifies two types of fair use - classic and nominative. ... The elements of the classic fair use defense set out in this instruction ...
[36]
https://law.resource.org/pub/us/case/reporter/F2/875/875.F2d.994.88-7828.88-7826.600.601.html
[37]
Pebble Beach Company; Sea Pines Company Incorporated,plaintiffs ...
4, supra, this nominative use is outside the strictures of trademark law ... For the same reasons that support Tour 18's nominative use of Pebble Beach ...
[38]
https://law.justia.com/cases/federal/appellate-courts/F3/155/526/523642/