common to this area of the law, nominative fair use denotes trademark mention. The Ninth Circuit identified three factors in attempting to carve out trademark mention from trademark use. First, the product or service in question must not be readily identifiable without the trademark. Second, the mark may only be used to identify the product or service. And third, the mark user must do nothing to imply “sponsorship or endorsement” by the trademark holder, See New Kids on the Block, 971 F.2d at 308. Courts are conflicted as to whether nominative fair use is an affirmative defense, inappropriate for resolution at the motion to dismiss stage, or a defect of the pleadings. Compare Health Grades, Inc. v. Robert Wood Johnson University Hospital, Inc., 634 F.Supp.2d 1226, 1242 (D.Colo.2009) (<HOLDING>) with Electronic Arts, Inc. v. Textron Inc.,
recognizing nominative fair use as an affirmative defense to trademark infringement holding that the nominative fair use factors replace the traditional sleekcraft factors for likelihood of confusion where nominative fair use is at issue holding that nominative fair use involves questions of fact whose resolution is inappropriate on a motion to dismiss holding that nominative fair use is an affirmative defense to a prima facie case of likelihood of confusion similar to the fair use defense recognizing the underlying principles of nominative fair use