Nominative fair use requires D to prevail on all 3 factors in 9th Circuit, district court concludes

Axon Enterprise, Inc. v. Luxury Home Buyers, LLC, --- F.Supp.3d ----, No.: 2:20-cv-01344-JAD-MDC (D. Nev. Jan. 16, 2024)

The court grants plaintiff's motion for reconsideration of parts of this case, discussed previously. Axon alleged that LHB infringed Axon’s “Taser” mark. The court previously denied summary judgment on nominative fair use, treating it as a balancing test: LHB needed to use “Taser” to refer to Axon’s product, but used too much (it was a former distributor), and there were genuine disputes of fact on whether it did anything else to suggest endorsement. The court granted reconsideration, now holding that all three prongs weren’t satisfied. Although what constitutes “too much” varies based on circumstance—an artist may need to use Barbie’s name and trade dress to make Barbie-themed art—the “no more than necessary” element needs to be satisfied to allow the defense to foreclose further consideration of confusion.

Thus, here, LHB used more of the Taser mark than necessary when it used its distinctive lettering and logo, and Axon was entitled to summary judgment in its favor on infringement. However, whether the permanent injunction already entered to “bar LHB’s use of Axon’s Stylized Taser Mark and Logos on all its websites and advertising” should be modified raised First Amendment considerations that required further briefing. (I take it this means that the logic of NFU means that remedies should allow proper NFU rather than flat bans.)