BP/G Radio Intellectual Property Podcast

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The Mystery of Fair Use Pt. 1 - Trademarks

February 7th, 2011

McGeveran-bill-115px.jpgHosts:  Ernest Grumbles, Joe Bennett-Paris

Guest:  Prof. Bill McGeveran, Univ. of Minnesota Law School

Alas, fair use - a doctrine grounded in common sense, the Constitution and statute.  It shows up in the world of trademark and copyright as the noble defense to infringement - I was justified in using "x" because (fill in blank - I used the term descriptively; I used the term to analyze the brand; I used the song bit as a parody...).  But can you afford the defense?  Setting aside that troublesome question, let's look at the doctrine itself.  Does it provide a clear, brightline rule to when you may and may not use another's trademarks or copyrighted materials?  The answer is... sometimes.  In reality, content and brand owners tolerate a lot of use, fair and otherwise, simply because it's not worth chasing down every over-the-line user.  That's their decision to make.  But of the would-be fair user, how can you make common sense decisions on when to go forward on a fair use?  That's the question for our experts. 

In this part 1 on Fair Use, we talk to Professor Bill McGeveran of the University of Minnesota.  McGeveran (aka McG - well, not that McG) is a former trademark litigator from Foley Hoag who now teaches and writes on trademark law.  We dig into the source of trademark fair use, its various species and some sensible ways to avoid conflicts on fair use issues.  Next  up: copyright fair use.

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