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Reconciling Fair Use And Trademark Use, Margreth Barrett

Margreth Barrett

This article looks to early common law, the legislative history of the Lanham Act, and public policy considerations to evaluate the relationship of the Lanham Act’s trademark use requirement to the trademark fair use defense. Although a number of commentators have suggested the contrary, I conclude that requiring infringement plaintiffs to demonstrate the defendant’s “trademark use” as part of its case-in-chief is consistent with the fair use defense, which waives liability if the defendant can demonstrate that its use was “in good faith” and “otherwise than as a trademark” only to describe its goods or services. These two “use” doctrines …