NEPP&B.Co
N.E. Patch, Pin & Buckle Company
Don't Be Fooled by Reproductions . . .
We have been on Ebay for over 15 years with strong positive rating.
(a) WHOMEVER:
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A. The Use of Another's Trademark In A Descriptive Sense
B. Reference to the Owner of the Mark or
the Owner's Goods or Services
Another species of the fair
use defense is the use of a mark when referring to the owner of a mark or the
owner's goods or services. Once again, this defense is only available if
the unauthorized user is not using the term for purposes of source
identification and the use does not imply sponsorship or endorsement by the
trademark owner. Obviously, a great deal of useful social and commercial
dialogue would be all but impossible if speakers were under threat of an
infringement lawsuit every time they made reference to a person, company or
product by using its trademarks.
In New Kids on the
Block v. North American Pub., Inc., 971 F2d 302 (9th Cir. 1992), the
Ninth Circuit affirmed summary judgment in favor of the defendant newspapers
which had used the trademarked name of the band ?New Kids on the Block? to
refer to the band in polls it conducted for the purpose of stimulating
newspaper sales. The Court referred to a ?class of cases where the use of
the trademark does not attempt to capitalize on consumer confusion or to
appropriate the cachet of one product for a different one,? noting that ?[s]uch
nominative use of a mark ? where the only word reasonably available to describe
a particular thing is pressed into service ? lies outside the strictures of
trademark law: The Ninth Circuit stated that a commercial user is entitled
to a nominative fair use defense if the user meets the following three
requirements: (i) the product or service in issue must not be readily
identifiable without reference to the mark; (ii) only so much of the mark may
be used as is reasonably necessary to identify the product or service; and
(iii) the user must not do anything to imply sponsorship or endorsement by the
trademark owner. New Kids on the Block, 971 F2d at 308.
C. The First Sale Doctrine
The unauthorized use of
another's trademark is also permitted under the ?first sale?
doctrine. Under this doctrine a business that resells genuine, non-adulterated
goods bearing a true mark cannot be held liable for trademark infringement,
even if the distributor had no authority to do so from the actual trademark
owner. See Polymer
Technology Corp. v. Mimran, 975 F.2d 58 (2d Cir. 1992). ?After
the first sale, the brandholder's control is deemed exhausted [and
d]own-the-line retailers are free to display and advertise the branded
goods. Secondhand dealers may advertise the branded merchandise for resale
in competition with the sales of the markholder . . . .? Osawa & Co. v. B&H Photo, 589 F.Supp.
1163 (S.D.N.Y. 1984).
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