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A beauty website that reviews products and trademark infringement

Los Angeles, CA |

I have a site where I will be posting about different beauty products. I am not paid by the company that I am promoting. Is there any problem with using the names of the products and manufactures on my site? Do I need to use the registered trademark symbol? Do I need FTC disclaimers? I

Attorney Answers 4

  1. In general, you should put up a disclaimer, privacy notice, terms of use/terms of service, and need to be mindful of copyright/trademark issues as well.

    Consult with an internet/business attorney.

  2. If you are going to be using copies of product labels and/or the brand names of the products, then you definitely should be mindful of the copyright and trademark laws. There is a defense applicable to the unauthorized use each of these categories of intellectual property, known as the "fair use" doctrine. What you are talking about is usually referred to as "nominative fair use"so far as trademark use is concerned - you are using the NAME of a brand to identify it for the purpose of criticism/etc.

    The nominative fair use defense protects the ability of people like you to use a trademark when referring to a trademark owner or its goods or service so that you can make or report commentary, offer criticism or parody, and even engage in comparative advertising (not your situation).

    "Fair Use' is a defense which only gets used in court, so it helps to know that a court would impose three requirements on defendants who want to take advantage of the nominative fair use defense.

    First, the trademark owner, product, or service in question must not be readily identifiable without use of the trademark.

    Second, the defendant must use only as much of the mark as is necessary to identify the trademark owner, product, or service.

    Finally, the defendant must do nothing that would suggest sponsorship or endorsement by the trademark owner. The trademark laws themselves are designed to protect consumers - against confusion and against false claims by competitors.

    Fair use also applies as a defense to copyright infringement. However, if you were planning to lift pictures of products out of magazines without the permission of the magazine or other media outlet (or even the photographer who took them, if they retained those rights), then you will find that fair use won't protect you there. You would be better advised to take your OWN pictures of the products upon which you would like to comment.

    I would certainly recommend that you meet with an attorney specializing in trademark and copyright matters to go over your plans and format, just to keep you squeaky clean.

  3. You will need proper copyright, trademark and regulatory legal advice in connection with the specific marks and products you be using. You should generally be okay to use trademarks in the form of reviews provided you include a trademark disclaimer and use the marks as depicted on the product. You should avoid making unsubstantiated claims about the results of any product, so you do not run afoul of the FTC. Additionally, your website will need a standard Terms of Use and a Privacy Policy.

    The foregoing response is provided for general informational purposes only and is not a solicitation for business. Please retain an attorney if you need specific legal advice. No attorney-client relationship is established until both you and me agree to establish one, and neither transmission of information herein, nor the receipt of such information, constitutes an agreement to establish an attorney-client relationship.

  4. What you need is advice of counsel. Since you say "the company that I am promoting", that implies that your primary purpose is not criticism or commentary but revenue. Now, if what you have in mind is comparative advertising, that can be done legally if done correctly. You need advice of counsel to minimize risk, and to the extent you do this on your own by pro se lawyering, you will risk a Judge finding that you really did not want to be told NO by a lawyer and that is why you did not see one. See the lawyer and get clearance so a Judge will think instead that you are trying to do the right thing and you will be much safer.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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