Trademark Guidelines

"Fair Use" of Trademarks

Although a trademark owner should take action to police the use of its trademarks by others, it cannot prevent others from using its trademarks under all circumstances. For instance, a company may refer to the trademarks of competing products in marketing its own products. As an example, Burger King might choose to state in advertisements that "Burger King® french fries were preferred over McDonald's® french fries in a taste test." Although McDonald's® is a trademark of McDonald's Corporation, Burger King could mention it in its marketing in this fashion so long as the statement is truthful and not misleading, does not imply an improper association with or sponsorship by McDonald's and otherwise complies with applicable laws. A key element in evaluating whether the use of someone else's trademark is acceptable is whether the use is likely to cause confusion in the marketplace as to the source or sponsorship of a product. Burger King's use of "McDonald's®" in the statement above is not likely to lead consumers to believe that Burger King® french fries are a product of McDonald's or that Burger King® french fries emanate from or are sponsored or approved by McDonald's Corporation.