2017-01-18
Digital media has become a popular medium for reporting and blogging. Many websites, blogs and other online publishers engage in commentary, criticism, reporting and other forms of expressions that often involve the mention of registered trademarks. The subject of trademark law and infringement is often complicated for the public to understand and questions regarding when use of a trademark is considered to be non-infringing often arise.
The law protects the public’s right to use other’s trademarks for non-commercial purpose. As long as the use is only for commenting, discussion or criticism, then that use does not lead to trademark infringement.
How is it possible to use someone else’s trademark on your site?
The purpose of a trademark is to protect the brand owner as well as the public. Trademark law protects the exclusive rights of the owners and aids in preventing consumer confusion.
Trademark infringement occurs when you use somebody else’s trademark in association with goods and services under the registered trademark. Simply mentioning a trademark is not considered to be a use of the trademark. Use of a trademark occurs when you sell products or services to the public. Unauthorized sales or portraying yourself as an authorized seller or user of a brand when you are not entitled to do so constitutes trademark infringement.
The mere mention of a registered trademark does not count as use of that particular mark. For example, if you report that Apple introduced a new product called the iPhone, that is not infringement. A consumer is not going to be confused into believing that you represent Apple, nor is the brand affected by informing the public about the product. There is, therefore, no infringement when you report, comment or even criticize a registered trademark with the sole intention of doing just that.
Using someone else’s trademark in a domain name has always been a subject of confusion. Earlier, courts did not allow the use of a company’s trademark for a confusingly similar domain name, even though the website made it clear that it had no affiliation with the trademark owner. But with time, new trends came in, allowing critics or fans to use nearly identical domain names. They are allowed such use only if it does not confuse the users and the website owner does not engage in any commercial activity in association with the trademark. Being a complicated subject, while selecting a domain name for a fan or critic site, you may be able to avoid infringement by including disclaimers specifying that it is not the official site or by adding phrases such as fans in your domain name.
Another issue relating to digital media is inviting infringement wen reselling a used or a newly bought product. If you purchase a product and later choose to resell, you can mention the registered trademark of the product without being liable for infringement. Attempts to pass yourself off as an authorized dealer may result in an infringement action being brought against you.
The mere mention of somebody’s trademark for purpose of expressing your opinion is not a trademark infringement. Trademarks are a sensitive and complicated subject and it is often beneficial to consult a trademark agent to assist you with any issues related to trademarks.
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