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The Third Circuit Carves Out New Real Estate for Itself: A New Standard for Nominative Fair Use in the Trademark Context

By Erin S. Hennessy
February 02, 2006

A trademark identifies the source of a particular good or service, and trademark law seeks to protect against a third party's use of a mark that “is likely to cause confusion, or to cause mistake, or to deceive” as to source. 15 U.S.C. '1114(1). That is, certain aspects of trademark law “preven[t] producers from free-riding on their rivals' marks.” New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 305, (9th Cir. 1992).

However, there are occasions when the use of another's trademark may be non-infringing. Two of these instances are “classic” fair use and “nominative” fair use.

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