NEPP&B.Co
N.E. Patch, Pin & Buckle Company
We have been on Ebay for over 15 years with strong positive rating.
(a) Whoever:
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A. The Use of Another's Trademark In A Descriptive Sense
It is a basic principle marking an outer boundary of the trademark monopoly that, while trademark rights may be acquired in a word, symbol or device, acquisition of those rights does not prevent others from using the word, symbol or devise in good faith in its descriptive sense, and not as a trademark. - This principle is of great importance because it protects the right of society at large to use words or images in their primary descriptive sense, as against the claims of a trademark owner to exclusivity.- Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267, 269 (2d Cir. 1995); see Champion Spark Plug Co. v. Sanders, 331 U.S. 125 (1947) (registering proper noun as trademark does not withdraw it from language, nor reduce it to exclusive possession of registrant). To come within this fair use defense a person must make use of the other party's trademark (i) other than as a mark, (ii) in a descriptive sense, and (iii) in good faith. See 15 U.S.C. §1115(b)(4).
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.
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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