The issue of when you can use another person’s trademark comes up often in business. There are a couple types of fair use of others’ trademarks, but this article will focus on “nominative fair use”. In the UK, the Trade Mark Act sec. 10(6) allows you to use another person’s trademark to accurately identify the source of goods or services. The US has a similar provision. New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992).
What this means is that magazines and other media can write articles or produce shows comparing products using other companies’ trademarks to identify their products. For example, a magazine could compare televisions from Sony, Samsung and LG using all of their trademarks to identify the televisions they are comparing.
You can imagine that an unfavorable comparison or review would anger the trademark holder, but as long as the review is fair, the use of the marks is legal. This has been expanded to allow competitors to create marketing and advertising that ultimately attacks their competitors’ products. It is perfectly legal, even allowing for a little puffery, as long as the comparison is fair, and the trademarks are only used on an as-needed basis. The courts in the UK and US have even produced a test for fairness.
So the next time you have strong evidence that your product is better than your competitor’s, and would like to do some comparison advertising touting this, keep it fair, consult an attorney/solicitor if you have any concerns about how to keep it fair, and if it can be kept fair, then proceed.
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