Chapter 5: Trademark infringement and its defences
The use of a trademark in a commercial way is a precondition to impose liability of trademark infringement. This makes the non-commercial use of the trademark a defence for trademark infringement. One can argue that trademarks used on social media pages are always used in a commercial way. Social media providers exploit advertisements on their social media sites. If internet users upload unauthorized trademark logos on the social media sites, these can be perceived as more attractive to internet users. The descriptive use defence for the descriptive use of a trademark can be found in the legislation of both the US and EU. One can argue that fair use defences are applied fairly and in good faith if the following three principles in regard to a trademark logo are satisfied: 1. The use of a trademark logo is precluded, because the defendant can substitute the trademark logo for a trademark name, which already clarifies to which product the defendant is referring to (subsidiarity principle); 2. Trademark logos do not lend themselves well to be used in a minimal way (proportionality principle); 3. One can argue that any use of a trademark logo by the defendant directly suggests some kind of affiliation with the plaintiff’s trademark (passivity principle).
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