The defense applies where the product is not readily identifiable without the mark, only so much of the mark is used as reasonably necessary, and nothing suggests sponsorship or endorsement.
Circuits differ on whether it replaces or supplements the confusion analysis.
Alternative Names:
Nominative Use|Referential Fair Use
Why it Matters?
Comparative advertising, repair services, and compatibility statements are the recurring applications, and the third element prohibiting suggestions of sponsorship is where uses fail, since prominent logo display and trade dress imitation exceed what reference requires. Using the word mark in plain text rather than the stylized logo is the practical guidance that keeps the defense available.
Frequently Confused with
Related terms
Frequently asked questions
Where do nominative uses fail?
What is the practical guidance?
