Critical Response

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.


Steven Seidenberg

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.