Fair Use of Trademarks

February 2003
by Lloyd L. Rich

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Lloyd RichLloyd Rich is an attorney practicing publishing and intellectual property law. He can be reached at 303-388-0291 or rich@sni.net. Holly Panetta, a second-year student at the University of Denver School of Law, provided research for this article.

When is it permissible to use or write about a trademark without obtaining permission from the trademark owner? To make writing more realistic, can you use trademarks such “Ford,” “Hershey,” and “Beanie Baby” in your work without permission? Can a book that is either favorable to or critical of a company or a company’s product line use a trademark of that company without obtaining
permission from the trademark owner?

Unfortunately, these are not always easy questions to answer. As with other legal issues that involve writing about another party or its property, responses depend upon the specific facts involving the particular use.

Cutting Down on Confusion

A trademark includes any word, phrase, symbol, design, sound, smell, color, product configuration, group of letters, or numbers that is used by a person or company to identify and distinguish its products or services from those provided by others.

Ownership of a trademark has the potential to last forever. The law recognizes and protects a trademark as intangible, intellectual property that has value to the trademark owner. Federal law, known as the Lanham Act, protects marks registered with the United States Patent and Trademark Office, while various state laws and “common law” provisions protect state-registered and unregistered trademarks.

Trademark law benefits consumers as well as producers by precluding the use of a mark when that use is likely…IBPA Members – Click here to view the full article (login required).

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