Nominative Fair Use of Trademarks in Domain Names

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Last month, the United States Court of Appeals for the Ninth Circuit issued an opinion in the case of Toyota Motor Sales, U.S.A. v. Tabari that asked whether the domain names buy-a-lexus.com and buyorleaselexus.com used in connection with automobile brokerage services infringed Toyota's trademark rights in LEXUS.

Conventional legal wisdom is that only the owner of a trademark has a right to use its trademark in a domain name in connection with related goods or services. The back-of-the-envelope legal calculus is not difficult: the domain names incorporate LEXUS in its entirety, and they are used in connection with auto brokerage services--services that are closely related to automobiles. There is only one catch: the brokers legally deal in genuine LEXUS vehicles. Astute readers will recognize this fact as raising the issue of nominative fair use.

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Winthrop & Weinstine, P.A. on:

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