Non-Infringing Use

• Jurisdiction: Maryland

IX. NON-INFRINGING USE

A. Nominative Use

Not every use of a third party's trademark is infringing. The Lanham Act allows use of another's mark so long as the context does not result in likelihood of confusion or dilution.¹¹⁹ Some circuits have adopted a special test for nominative use; others simply apply the necessary factor test for likelihood of confusion.

B. Fair Use

Arguably, nominative use is a fair use, but there are many other uses that are fair. Another's mark can be used in comparative advertising, or as part of a description of the user's products. For example, using a third party's brand in the middle of a descriptive sentence—and not calling out the mark as a heading, or with larger font, or with different color—is...