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'Beach Boys' Ruling Demonstrates Complexity Of Fair-Use Trademark Infringement Defense

By Stan Soocher

The entertainment industry, based on building brand-name content and entities, has a long history of disputes over trademarks. Yet it may be unclear to a court how a defendant in a trademark infringement action intends to use a fair-use defense.

In general, trademarks are grouped on a scale of increasing protection, based on their level of distinctiveness. Generic terms are those with broad-based meanings, such as the word 'movie,' and don't qualify as trademarks. The scale moves up to descriptive marks, which directly describe the quality or characteristics of goods or services, such as 'Loud Music,' in relation to their use as marks. These generally aren't protectible unless they acquire secondary meaning. Suggestive marks are those with an imaginative element, like 'Larkspark Record Productions,' that may be protected without a secondary meaning. Next, arbitrary marks are based on common words that are inherently distinctive, such as 'A-Plus.' The less these marks are used by others, the greater protection they receive. At the top of the scale are fanciful marks, like 'Kodak,' which are new terms created as an exclusive property right.

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