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Nominative Fair Use For 'Beach Boys Family and Friends' Rejected
In Brother Records Inc. v. Jardine, No. 01-57095, (9th Cir. Jan. 28, 2003), the Ninth Circuit rejected Defendant's nominative fair use defense. In 1998, Alan Jardine, a member of the Beach Boys band, started touring with his own band that he called 'Beach Boys Family and Friends.' Brother Records Inc., the company formed by the original Beach Boys band to administer their trademarks, sued for trademark infringement.
Jardine argued that his use fell within the doctrine of nominative fair use. The Ninth Circuit stated: 'where the defendant uses a trademark to describe the plaintiff's product [or service], rather than its own, we hold that a commercial user is entitled to a nominative fair use defense provided he meets the following three requirements: First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service; and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.' New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 308 (9th Cir. 1992).
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