Trademark Fair Use for Small Businesses

Trademark Fair Use and Using Another Brand's Name

Trademark fair use generally lets a business name another company’s brand to truthfully refer to that company’s products, such as saying an accessory is “compatible with” a popular device. It stops being fair when the mention suggests a connection to the brand, uses more of the mark than necessary, or turns the other brand’s name into your own. Because every situation depends on its facts, this post is general information, not legal advice.

What Is Trademark Fair Use?

Trademark fair use is a legal doctrine in U.S. trademark law that allows limited use of someone else’s trademark without permission. Whether a use is likely to confuse consumers about who is behind a product is known as likelihood of confusion, and fair use recognizes that businesses sometimes need to name a brand simply to be clear and honest.

There are two main types:

Nominative fair use: Using a brand’s name to refer to that brand’s own products. For example, a seller of replacement watch bands may generally state in plain text that the bands fit the Apple Watch.
Descriptive fair use: Using a word that happens to be someone’s trademark in its everyday meaning to describe your own goods, rather than as your brand. This usually involves a trademark made of a descriptive term. For example, if another company owns CITRUS FRESH for cleaning spray, a competitor may generally still describe its own spray as having a “citrus fresh scent” in advertising, but could not name its brand CITRUS FRESH.

When Is Mentioning Another Brand Generally Acceptable?

The legal tests vary across the country, though many focus on three questions. Is the brand’s name needed to identify the product? Are you using only as much of the mark as reasonably necessary? Does anything suggest the brand sponsors or endorses you?

Common examples that tend to fit this approach include:

Compatibility statements. Stating in plain text that an accessory works with a specific device is a common example.
Reseller descriptions. A shop that sells genuine products may generally name the brand to say what it sells.
Repair or service listings. “We repair [brand]” tells customers what you work on.
Truthful comparisons, reviews, and commentary. Comparative advertising, news reporting, and criticism are often treated as fair when accurate.

Where Can Mentioning Another Brand Cause Problems?

Problems usually start when a mention goes beyond identifying a product.

Watch for these:

Logos and stylized lettering. Plain text is generally the safer choice when a name alone gets the point across.
Words that imply a relationship. Terms like “official,” “authorized,” or “partner” can suggest approval that may not exist.
Using the brand as your own. Building another company’s name into your business name, product name, or logo generally falls outside fair use, because the name would then be working as your own brand.
Claims that are not accurate. Comparisons and compatibility statements generally need to be true.

Does Trademark Fair Use Protect My Own Brand Name?

No. Trademark fair use covers how you refer to another company’s products. It does not clear the name you plan to use for your own business. Before you choose or file a brand name, a comprehensive trademark search should look at pending and registered federal marks in the USPTO (United States Patent and Trademark Office) database, state trademark registrations, and common law usage, which means rights that come from actually using a mark, often in a specific geographic area, even without registration.

A thorough trademark clearance search should also catch confusingly similar marks, not just identical ones, since the USPTO looks at similarity in sound, appearance, and meaning. It should also look at related goods and services, because a conflict is not limited to your exact industry. When comparing search providers, ask whether each of these areas is covered.

Trademark Fair Use FAQ

Can I say my product is “compatible with” another brand?
Generally, a truthful compatibility statement in plain text is commonly viewed as acceptable when it does not suggest the brand endorses your product. Wording that implies approval, such as “officially licensed” or “endorsed by,” can cause problems if the brand has not actually approved your product.

Can I use another brand’s logo on my website?
Logos carry more risk than plain text because they can suggest approval. A trademark attorney can advise on a specific use.

Can resellers use a brand’s name?
Resellers can generally name the brand of genuine products they sell. They should avoid implying they are an authorized dealer or affiliated unless that is true, and brand owners or marketplaces may set their own rules.

What is the difference between nominative and descriptive fair use?
Nominative fair use means naming a brand to refer to that brand’s own products, such as saying your accessory fits a specific phone. Descriptive fair use means using a word that happens to be someone’s trademark in its ordinary meaning to describe your own product, not as your brand.

Naming a brand or getting ready to file? TradeMark Express provides comprehensive trademark and common law searches, along with application preparation assistance. Contact us to get started. Once your search is complete, you can review the findings with a trademark attorney from our referral network.

DISCLAIMER: References to particular trademarks, service marks, products, services, companies, or organizations appearing on this page are for illustrative and educational purposes only and do not constitute or imply endorsement.

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Shannon Moore