gd123 wrote:
I think we have been incorrectly referencing the Latham Act as a defense, as it specifically deals with sales.
Hey Chip, check out this site and see if this doesn't apply: Go to: (II. Nominative Use As Fair Use:)
http://www.mondaq.com/unitedstates/article.asp?articleid=44468
All situations seem to conform to Fair Use!!!!
But, as you have said, where is the Monetary Damage of showing their Trademarks. (LOL)
Your Cartoons say it all!
Hey Chip, check out this site and see if this doesn't apply: Go to: (II. Nominative Use As Fair Use:)
http://www.mondaq.com/unitedstates/article.asp?articleid=44468
All situations seem to conform to Fair Use!!!!
But, as you have said, where is the Monetary Damage of showing their Trademarks. (LOL)
Your Cartoons say it all!
That would be a great argument for the defense of trademark violation if you were using the manus origional product ie: the disc. but the "Nominative Use As Fair Use" also deals directly with the situation at hand and specifically disallows it's use for copies of a trademarked product.
Quote:
On the other hand, the court in Cairns v. Franklin Mint Company, 292 F.3d 1139 (9th Cir. 2002), explained the distinction between classic and nominative fair use by considering the nominative fair use analysis appropriate when a "defendant has used the plaintiff’s mark to describe the plaintiff’s product, even if the defendant’s ultimate goal was to describe his own product. Conversely, the classic fair use analysis applies "where the defendant has used the plaintiff’s mark only to describe his own product, and not at all to describe the plaintiff’s product." Id. at 1152; see also, Brother Records, Inc. v. Jardine, 318 F.3d 900 (9th Cir. 2003).30
In Brother Records, the defendant was a former member of the Beach Boys musical group and was sued for his use of the BEACH BOYS trademark. Ultimately, the court abandoned the clear-line test that it and the Cairns court had articulated and recognized that where a defendant uses his or her own title, PLAYMATE OF THE YEAR or member of the BEACH BOYS, the distinction between a use that refers to the defendant and a use that refers to the trademark holder can be more confusing than helpful. Accordingly, the court analyzed the case under both tests and held that the nominative fair use defense did not save defendant. Although defendant Al Jardine satisfied the first two prongs of the New Kids test, he failed to satisfy the third prong because he emphasized BEACH BOYS when promoting his concerts and in so doing, created actual confusion.
In Brother Records, the defendant was a former member of the Beach Boys musical group and was sued for his use of the BEACH BOYS trademark. Ultimately, the court abandoned the clear-line test that it and the Cairns court had articulated and recognized that where a defendant uses his or her own title, PLAYMATE OF THE YEAR or member of the BEACH BOYS, the distinction between a use that refers to the defendant and a use that refers to the trademark holder can be more confusing than helpful. Accordingly, the court analyzed the case under both tests and held that the nominative fair use defense did not save defendant. Although defendant Al Jardine satisfied the first two prongs of the New Kids test, he failed to satisfy the third prong because he emphasized BEACH BOYS when promoting his concerts and in so doing, created actual confusion.