RESOLVED, that IPO supports the consistent recognition of the nominative fair use defense throughout trademark law, including that the defendant bears the burden of persuasion for invocation of the defense.
RESOLVED FURTHER, that IPO supports that any determination of nominative fair use consider the following factors: (1) whether the use that plaintiff’s mark is necessary to describe the plaintiff’s product or service and the defendant’s product or service; (2) whether the defendant has used only so much of the plaintiff’s mark as is necessary; and (3) whether the defendant did anything (be it act or omission) that would, in conjunction with its use of the plaintiff’s mark, suggest sponsorship or endorsement by the plaintiff.
