Fair use in a digital age

Panelists from yesterday’s session Is Fair Use Always Fair? International Approaches to Fair Use Issues in a Mobile World discussed the evolution of the concept.

Gavin Charlston of Google pointed out that though brand owners sometimes see their trademarks as property rights to be enforced against third parties, the reality is that marks do not operate in a vacuum. Referring to a quote from former U.S. federal appellate court Judge Alex Kozinski, he said that trademarks become part of a common language and that everyone, including third parties, have a right to use them to communicate in truthful and non-misleading ways.

Sung-Nam Kim of Kim & Chang in Seoul explained the basic framework behind nominative fair use, where a third party uses a trademark to refer to the product or service of the trademark holder. In the U.S. and several other countries, courts look at whether the third party’s product is readily identifiable without use of the trademark, whether the degree of use exceeds what is necessary, and whether use of the mark falsely suggests sponsorship or endorsement by the trademark holder.

Kim pointed out that under this test, the use of another company’s logos may be problematic in many cases because it can be argued that the use may exceed what is necessary to convey information.

The situation may be different in the mobile world. Andrea Sander of Microsoft explained that as consumers migrate toward mobile devices with smaller screens, logos may in many cases be the best way to convey the necessary information.

Some Internet companies also encourage third parties to use their logos and marks. Stephen Jadie Coates of Twitter explained that his company encourages third parties to use its unmodified blue bird logo or the word “tweet” to refer to its service. He noted that the company is sometimes even accepting of uses that are not technically compliant with all requirements, especially when there is no suggestion of endorsement or affiliation with Twitter.

Google’s approach to its ANDROID robot logo is even more lenient; the company has adopted a Creative Commons license which allows for modification of the logo. “We firmly believe that it’s the open nature of the logo that has helped to make it so iconic,” Charlston said.

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