Fair Use is also covered under Defenses and is best understood when read in the context of the other defenses. It is treated as a separate topic to make it easier to find for those that may want to compare and contrast the doctrine under trademark with its analog under copyright. They are not the same, although at times both commentators and courts talk in terms that would make you believe otherwise, the devil is always in the details and therefore let that serve as an introduction to the editorial rant that follows.
Fair use, as a defense in the trademark sense, is limited to a narrow meaning best exemplified in the case of Zatarain's v. Oak Grove Smokehouse (5th Cir. 1983). Here the argument was over the trademark "Fish-Fri" owned by Zatarain. The court explains the use of the defense as follows:
But the excerpt above begs the question how much use by competitors might indeed lead to confusion? That is left for another link in the chain to determine. Notice however, that the court in Mattel (see Defenses|Parody) used the phrase "nominative fair use." Were they referring to what 5th Circuit was talking about in Zatarain? No, despite the fact that "fair use" was part of the holding. The cases mean what the cases mean, nothing more. In order not to lose track of "Waldo" you must keep in mind a quote by Supreme Court justice Oliver Wendell Holmes: “the law is not something to be derived from a set of axioms via the power of deductive reasoning, but rather the law is ultimately whatever a court says that it is.”
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