Nominative Fair Use Makes No Sense

Abstract

This is a working draft of a paper on trademark fair use and nominative fair use particularly.This article explores and critiques the doctrine of nominative fair use, a defensive doctrine originally created to protect parties charged with trademark infringement. I explain that while the concept of “fair use” in trademark law seems to be ascendant, the meaning of the “trademark fair use” is not settled. I argue that the doctrine of nominative fair use is actually counterproductive and works to disadvantage defendants who wish to make expressive uses of trademarks. For this reason, it should be abandoned in favor of more nuanced examinations of how defendants may not infringe trademarks when they choose to “name” competitor brands in commercial discourse.