Descriptive fair use means the use of a word or phrase to describe a product or service, not as a source identifier. For example, a seller of pillows might use the word “soft” to describe them even if someone else is using SOFT as a trademark for pillows. Saying, “Our company’s pillows are soft” would
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Fair use is a potential defense to trademark infringement in some cases. It does not have the same meaning, and it is not assessed in the same way as copyright fair use . The two kinds of trademark fair use are (a) descriptive fair use and (b) nominative fair use. Parody is usually fair use.
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A suggestive trademark is like a descriptive mark in that it describes a quality or feature of the product or service. The difference is that it does not do it directly. It requires an additional step in the thinking process to make the connection. JAGUAR as a brand identifier for a motor vehicle is an
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A descriptive mark is one that describes a quality or feature of a product or service. INTERNATIONAL BUSINESS MACHINES is an example. “Business machines” is generic, of course. “International” is descriptive. It describes a quality or feature of these machines, namely, that they are marketed and/or used internationally. Descriptive marks may not be claimed as
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The 5-tier distinctiveness pyramid developed by Minnesota attorney Thomas James is a conceptual and visual aid for understanding the different levels of distinctiveness a trademark may have. The five levels, from least to most distinctive, are: Generic Descriptive Suggestive Arbitrary Fanciful.
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