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Fair Use and Free Expression Defenses in Trademark Law

Fair use in trademark law protects, first and most plainly, descriptive uses of ordinary English language words and phrases, even if they are also used as trademarks. So, for example, using the term "fish-fry" to describe a product used to bread fish did not infringe a trademarked term "fish-fri" (Zatarains v. Oak Grove Smokehouse), and describing a cranberry drink as "sweet-tart" did not infringe the trademark for the candy "SweeTarts". (Sunmark v. Ocean Spray Cranberries.) This protection is sometimes called "statutory", "descriptive", or "classic" fair use, and it is a vital free expression doctrine, preventing the basic phrases and commonplace expressions of ordinary language from appropriation by individual businesses or organizations.

Fair use in trademark law also protects the right of competitors to engage in comparative advertising, using the trademarked names of goods or services to draw their comparisons. Products may name competing products on their labels, as long as they accurately describe them, and distinguish them so as to avoid confusion. This benefits consumers, who are able to make accurate comparisons across products.

Fair use also protects our right to use a trademark to specifically refer to the trademarked good or service. This is sometimes called "nominative" fair use, and it allows speakers to criticize, comment upon, compare, and even satirize companies, products, and advertising slogans.

Courts also generally protect the use of trademarks in criticisms and parodies, describing this as either "fair use" or protected by the First Amendment. Mattel's Barbie dolls have famously become the subject of many artists' attention; in one such case, the use of Mattel's Barbie mark in a song was a permissible parody (Mattel v. MCA Records.) As long as the critic is not trying to sow confusion or otherwise act in bad faith, these uses are protected.