united-states copyright trademark fair-use
Using someone else&#39;s registered trademark
<p>This seems like a very textbook and common question, but I can't find it anywhere. Here's an example of the situation:</p>

<p>A card game called Cards Against Humanity sometimes uses other company's names or slogans. For example, it might say something like:</p>

<blockquote>
  <p>But before I kill you, Mr. Bond, I must show you... </p>
</blockquote>

<p>Although James Bond is now <a href="http://copyright.nova.edu/james-bond-public-domain/" rel="nofollow noreferrer">in the public domain</a>, let's say it wasn't yet. Would Cards Against Humanity be <em>required</em> to use the ® symbol like this or at all?</p>

<blockquote>
  <p>But before I kill you, Mr. Bond ®, I must show you...</p>
</blockquote>

<p>Say I wrote a spy novel, in which some character refers to my protagonist as &quot;Mr Bond&quot; suggesting that he thinks of himself as a &quot;master spy&quot; like the movie character. Would that infringe a trademark on &quot;James Bond&quot; (assuming, for the moment that that name is trademarked)? No it would not. Or suppose my main character mentions having met Bond years ago during training, or on a previous mission. Would that infringe? Again, No. Or suppose I write a brief, one-paragraph walk-on scene in which the James Bond character appears? Infringement? Again, no.  Or suppose my spy character is waiting for a meeting, and stops for a meal, and i mention that he has a Coke. Would that infringe the trademark on Cocacola? No it would not. All of these are forms of <em>nominative use</em>, and none of them are &quot;uses in commerce&quot;, so there is no trademark liability.</p>
<p>(Interestingly, there was a series of stories set in an alternate world, written by Randall Garrett in the 1960s-90s. Some of these are spy stories, and his major spy character is &quot;Sir James le Lien&quot;  Now a &quot;lien&quot; is a French-derived legal term for a secured debt. The most common English-derived term for a (slightly differently) secured debt is &quot;bond&quot;. No one ever tried to sue Garrett for trademark infringement.)</p>
<p>The game &quot;Cards Against Humanity&quot; includes, as I understand, many brief references to real-world and fictional things and characters, some of which are trademarked. But none of these uses are &quot;in commerce&quot; and no reasonable person would be confused into thinking that the game was sponsored or endorsed by any of the trademark holders, nor are these trademarks being used to promote or advertise anything. So, No infringement.  Now if the game were advertised as &quot;The only card game to feature super-spy James Bond&quot;, that might well be infringement. at least a case could be made for infringement then. But as it stands? I don't think so.</p>
<p>Also, use of the R-in-a-circle symbol is totally optional when one makes nominative use of someone else's trademark. It can help, along with a disclaimer, to make the point that the user is not claiming ownership. Something like:</p>
<blockquote>
<p>{X}® and {Y}<sup>TM</sup> are trademarks of {Z-corp}. They are used here to refer to {Z-corp}'s products. The use here is in no way approved of by Z-corp, nor does Z-corp endorse, sponsor, or recommend this product. No ownership of these trademarks is claimed.</p>
</blockquote>
<p>However such a disclaimer is not in any way required, any more than the ® symbol is.  One exception, if a trademark is used with permission, the owner may make use of the ® symbol a condition of the permission.</p>
