US-CA9 · jury_instructions
9th Cir. Model Jury Instr. (Civil) 15.25
Defenses—“Classic” Fair Use
(15 U.S.C. § 1115(b)(4))
The [owner] [assignee] [licensee] of a trademark cannot exclude others from making a fair use of that trademark. A defendant makes fair use of a mark when the defendant uses it as other than a trademark, to accurately describe the [geographic location] [maker] of the defendant’s own [product] [services].
The defendant [name] contends that it fairly used the trademark to describe the defendant [name]’s [[product] [service]]. The defendant [name] has the burden of proving its fair use of the mark by a preponderance of the evidence.
The defendant [name] makes fair use of a trademark when the defendant:
First, used the mark [other than as a trademark] [other than to distinguish the defendant [name]’s goods from the plaintiff [name]’s and to indicate the source of the defendant [name]’s goods];
Second, used the mark fairly and in good faith; and
Third, used the mark only to describe the defendant [name]’s goods or services [or their geographic location] as those of the defendant’s [and not at all to describe the plaintiff [name]’s product].
Provenance
- Source
- ce9.uscourts.gov
- Retrieved
- 2026-08-20
- Edition
- 2026-08-20
- Content hash
04fefbd686c1f4f4a97a9cc0d3db8199d18a1500e686fa7ebb375ada71e0d3ea
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