Is This Going to Be on the Test? Reconciling the Four-Way Circuit Split over Handling Nominative Fair Use

Nominative fair use quietly allows the media to name sports teams, musical groups, and other trademarked sources in their reports, for the most part, without liability for infringement. Consumers rely on nominative fair use to make efficient purchasing decisions. It allows consumers to research and find third-party reviews directly naming and comparing brands. Without nominative fair use, consumers would have to rely on descriptions of competing products not having the benefit of source identifying marks. Producers rely on nominative fair use to compare their products to those of competitors as well as to describe certain qualities of their products. The United States Circuit Courts of Appeals disagree on how to determine whether a nominative use of another’s mark is a nominative fair use or an infringement. The Second Circuit in International Information Systems Security Certification Consortium v. Security University created an eleven-part inquiry into nominative fair use. This Recent Development argues that the Second Circuit should have instead seized the opportunity to adopt the Ninth Circuit’s simpler three-part test for nominative fair use.