Wednesday, April 28, 2021

Nominative fair use (maybe) and Amazon

 I've recently seen two examples of the following phenomenon: off of Amazon, an advertiser uses images of its product with another well-known product, and they do go together, but on Amazon, the advertising is different. Anyone know if there's an Amazon policy driving this? For those circuits that require the advertiser to have a good reason to refer to the trademark owner in order to justify nominative fair use, the Amazon ads would seem to show it's possible to advertise without using the other mark. Special kudos to the Angelus paint for using an all-red shoe on Amazon, which isn’t a “use” of the Louboutin mark according to the 2d Circuit. Clever!

Angelus shoe paint off Amazon (and from some third party sellers on Amazon): 

Amazon product image:

Ka'Chava off Amazon (note Ball jars used to display product): 
Ka'Chava on Amazon:

1 comment:

Gordon P. Firemark said...

I have no idea about the Ball jars, though I actually think the plain glass jar image is better, but as for the Angelus ad, don't you think that if they HAD used Loubutin shoes, it could've created a false association in the consumer that theirs is actually THE dye used on Loubotin soles? A 43(a) claim perhaps notwithstanding the 2nd circuit's opinion.