Fair Use and Freedom of Expression of Trademarks in Instruction, Research, and Publishing

Copyright isn’t the only intellectual property that potentially permits a Fair Use defense for the use of another’s intellectual property without permission. Additional Fair Use-related doctrines, including Freedom of Speech, protect lawful use of the trademarks of others in certain instances, as described in this article. Educators, librarians, and their research constituents are often unaware of their Fair Use boundaries related to trademarks; in some instances these educators, librarians, and their constituents rely on expressive use of others’ trademarks for projects related to research, commentary, criticism, and other free speech applications. This article reviews what Fair Use-related defenses exist to support educators, librarians, and their constituents (especially students and non-profit professionals) in reducing risks of infringement for expressive uses of trademarks. Trademark topics mentioned include avoiding infringement, dilution, cybersquatting, and unfair competition. The universally acknowledged Fair Use-related defenses for trademarks encompass Classic (Descriptive) Fair Use (codified in the Lanham Act); Nominative (Collateral) Fair Use; Fair Use based upon Copyright Law (Section 107); and First Amendment (Rights of Expression). Although guidelines and safe harbors may be restrictive, Codes of Best Practices for Fair Use related to copyright have been successful for educators, librarians, and other research professionals, such as noncommercial documentary filmmakers. This article suggests that such a Code or guideline for educators and librarians supporting freedom of expression in instruction, research, and publishing related to Fair Use of trademarks is also needed.