Business owners often ask whether they can reference another company’s trademark without permission. In certain situations, the answer is yes. Trademark fair use allows limited use of another party’s mark without creating infringement, provided specific legal conditions are met.
At Jafari Law Group, we help clients evaluate when fair use applies and when use of a trademark may create legal risk. Knowing the difference can help you market your business, describe your products, or compare services without stepping into a dispute.
What Is Trademark Fair Use?
Trademark fair use is a legal doctrine that permits the use of a trademark without the owner’s consent when the use is lawful and does not mislead consumers. The focus is not on permission, but on how and why the mark is used.
Fair use does not give unrestricted rights. It applies only in narrow circumstances and depends heavily on context.
There are two primary types of trademark fair use: descriptive fair use and nominative fair use.
Descriptive Fair Use
Descriptive fair use applies when a word or phrase that happens to be a trademark is used in its ordinary, descriptive sense, not as a brand identifier.
This typically occurs when:
- The term describes a quality, characteristic, or feature of a product or service
- The term is used fairly and in good faith
- The term is not used as a trademark
Example:
If a company sells apples and uses the phrase “apple-flavored” to describe taste, that use may be permitted even though “Apple” is a well-known trademark in a different industry.
The key issue is whether the term is being used to describe something, not to suggest a brand connection.
Nominative Fair Use
Nominative fair use allows someone to use another party’s trademark to identify that trademark owner’s actual product or service when there is no reasonable alternative.
This type of fair use commonly applies in:
- Product reviews
- Comparisons
- News reporting
- Commentary or criticism
- Compatibility statements
Courts generally look at three factors:
- The product or service cannot be easily identified without using the trademark
- Only as much of the mark as necessary is used
- The use does not suggest sponsorship, approval, or affiliation
Example:
Stating that your repair service fixes “Toyota vehicles” may qualify as nominative fair use if the statement is accurate and does not imply endorsement.
What Fair Use Does Not Allow
Trademark fair use does not protect uses that:
- Cause consumer confusion
- Suggest affiliation or approval
- Use logos, stylized designs, or branding unnecessarily
- Appear in domain names, business names, or product branding
- Are misleading or deceptive
Even truthful statements can create legal problems if they imply a relationship that does not exist.
Fair Use vs. Trademark Infringement
The line between fair use and infringement is often fact-specific. Courts analyze how consumers are likely to perceive the use. If consumers may believe the trademark owner is connected to, sponsoring, or approving the use, fair use may not apply.
This is why fair use is commonly raised as a legal defense, not a blanket permission. Each situation must be evaluated carefully.
Practical Tips for Businesses
If you plan to reference another company’s trademark:
- Use the mark only when necessary
- Avoid logos or stylized versions unless required
- Clearly identify your own brand
- Add disclaimers when appropriate
- Avoid prominent or repeated use that looks like branding
If you are unsure, legal guidance before publishing or launching marketing materials can help reduce risk.
When to Speak With an Attorney
Trademark fair use can be misunderstood, and mistakes can lead to cease and desist letters or legal action. Whether you are using another party’s mark or believe someone is misusing yours, it is worth getting legal advice early.
At Jafari Law Group, we help clients assess fair use, infringement risk, and enforcement options. We offer a free consultation to review your situation and explain your legal options clearly.
Contact Jafari Law Group to speak with an attorney about trademark fair use and brand protection.