‘Nominative Fair Use’ For TMs: An Idea Whose Time Has Gone

Nearly 25 years ago, the Ninth Circuit created a new defense to claims of trademark infringement, which it described as “nominative fair use.” New Kids on the Block v. News America Publishing Inc., 971 F.2d 302, 306-08 (9th Cir. 1991). The defendants in New Kids, two nationally circulated newspapers, had conducted polls to identify which of the New Kids on the Block, a five-member “boy band,” was the most popular. Apparently unhappy with these polls, the band sued the newspapers for trademark infringement, but the district court granted summary judgment in favor of the newspapers.