Are there any limits to trademark rights?
Not all uses of a trademark without permission of the trademark owner are necessarily an infringement of that trademark. The use of a trademark is only infringing if it’s likely to confuse people regarding the source, endorsement or affiliation of products or services. So, if a trademark is used in a way that is unlikely to cause consumer confusion, it’s generally not considered infringing.
Notably, simply referring to a trademark for the purpose of discussing the product or service offered probably won’t be an infringing use of the trademark, as long as that reference doesn’t use more of the trademark than is needed to make its point. In fact, you might need to use the trademark to describe or comment on a particular product or service. This is known as the doctrine of nominative fair use, and typically permits such uses as commentary, criticism, parody, reviews and, in some countries, comparative advertising.
And while these matters are very fact-specific, trademark rights also often don’t prevent:
- The resale of legitimate goods or selling legitimate goods through channels that are not authorized by the trademark owner
- The use of a trademarked word in its ordinary dictionary meaning
- The use of a trademark in a way that is not related to the sale or promotion of products or services
Trademark rights are generally limited to the geographic territory where the trademark owner uses the trademark to identify their goods or services. For example, if a trademark owner uses a trademark to refer to their restaurant in Country A, they likely won’t be able to prevent another person from using the same term to refer to their own restaurant in Country B.
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- What should I consider before submitting a report of intellectual property (copyright or trademark) infringement?
- What information do I need to include in a trademark report?
- I submitted a trademark report to Instagram. What happens now?