Law Commons^™

Infringement Or Identification?: Nominative Fair Use And The Resale Of Luxury Goods, Jordan Phelan

Fordham Law Review

The market for luxury resale is booming and is predicted to continue its massive growth. Luxury resellers typically market and describe goods using the luxury brand’s trademarks, including the brand name and logos. Luxury brands utilize their market power to “bully” smaller resellers and often take issue with third parties using their trademarks in any context, even when the use of the mark does not encroach on the luxury brand’s share of the market. However, the doctrine of nominative fair use allows the use of a brand’s trademark when referring to that brand’s goods. An alleged infringer will be found …