Disgruntled customers are a fact of life, even for the best-run businesses. And Philip Smith was definitely disgruntled.
Smith ran a small business in Greenville, S.C., supplying parts and service for a variety of Apple products. He hired a local company, Bidzirk, to sell a lot of computer inventory on eBay and deliver some items he had already sold.
Fair Use Defense
Even if a plaintiff manages to prove confusion and use in commerce, it's not home free. A defendant can claim it was making "nominative fair use" of the mark. "It is almost impossible to complain about a consumer brand unless one uses the brand name, and the law has [a fair use] exception for this," Zelnick says.
But not all courts accept this argument. The 6th Circuit, for instance, rejected it in 2003. "As a result, defendants cannot universally rely on its availability, especially given the unsettled nature of Internet jurisdiction," Goldman writes.