If you advertise, post, share, compare, promote, or influence products or services, this question may be at the forefront of your legal concerns. The progression of social media as a prominent marketplace and advertising medium has created new concerns regarding the legalities of trademark protection and trademark infringement.

Should I be worried about using trademarks that don’t belong to me in my advertising and posting?

As is so often the answer – it depends on your intentions. Using a Trademark owned by someone else for the purpose of deceiving consumers into thinking your product is created by the same source as another brand is infringement of the trademark owner’s rights, and is prohibited. However, there are a limited set of circumstances where using a Trademark belonging to another person/entity is not considered infringement.

How Can I Use the Trademarks of Others Without Infringing Their Trademark Rights?

Under the Lanham Act[1], the circumstances in which someone may use another’s Trademark, are called Nominative Use, of Fair Use, and include:

         1.Comparitive advertising that is an opinion, such as ‘Brand A is better than Brand Z’.

         2. Compatible use is allowed when a product is shown to be compatible or functional with another product, such as demonstrating that a cell phone case is compatible with a major brand cell phone.

       3. Other instances where use of another’s Trademark is permitted include legitimate sponsorship by the other brand (often permitted through contract agreement), and when the use is for parody (caution is still strongly recommended).

In nominative use cases, the law is concerned with avoiding consumer confusion by giving credit to the brand that invested in the original Trademark, and by properly attributing the source of the goods or services through identification, and often, permission to use the mark.   

In nominative use cases, the law is concerned with avoiding consumer confusion by giving credit to the brand that invested in the original Trademark, and properly attributing the source of the goods through identification.

When In Doubt, Obtain Permission

If you find your intended usage falls into a grey area, or doesn’t fit neatly into one of the categories above, err on the side of caution and obtain permission to use the mark. At Behrends Legal, we are big believers in preventative law, or taking action now, to prevent or limit the potential for litigation later, before acting or posting is a wise move.

Please feel free to reach out to us at Behrends Legal to make a plan to protect your business as you advertise your brand!

This is a post about common trademark concerns and should not to be taken as legal advice. Nor does the reading of this post create an attorney-client relationship. If you have legal questions, please reach out to us at Behrends Legal today for a consultation.

P: 970-578-9455

E: rachel@behrendslegal.com


[1] See 15 USC 1125 (c)(3) Fair Use Doctrine