doctrine, d. The nominative fair use doctrine. SBR’s third objection to Plaintiffs’ trademark claims is the nominative fair use doctrine. This doctrine divides trademark “use” from trademark “mention.” To use a mark as a mark — a “trademark use” — the defendant must attempt to identify the source of the mark with the defendant itself. See Rescuecom Corp. v. Goose Inc., 562 F.3d 123, 128-31 (2d Cir.2009) (contrasting trademark use with “use in commerce”). “Trademark mention” is any other use of a mark; it is “to refer to a particular product for purposes of comparison, criticism, point of reference or any other such purpose.” New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302, 306 (9th Cir.1992). In a terminological infeli WL 3042668, at *5 (N.D.Cal. July 25, 2012) (<HOLDING>). However, the Ninth Circuit — progenitor of
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 the application of the fair use doctrine at the pleading stage is appropriate holding that determining nominative fair use at the motion to dismiss stage is ap propriate if the pleadings show it is implausible that a viewer will be confused holding that nominative fair use involves questions of fact whose resolution is inappropriate on a motion to dismiss recognizing the underlying principles of nominative fair use