Summary. This toolkit collects the working documents of a trademark fair use practice, each introduced by its purpose, owner, and timing and followed by drafting commentary tied to the controlling cases. For marketing and legal teams it supplies nominative use guidelines with an approved-phrasing chart, a reference-use review form, a descriptive copy worksheet, a comparative advertising clearance memo, a model comparison chart, and model disclaimers. For disputes it provides a parody and expressive-use risk memo built around Jack Daniel's Properties v. VIP Products, a response to a cease-and-desist letter, answer language for the fair use defenses, dispositive motion outlines for both sides, an evidence matrix, targeted discovery requests, and a survey and expert planning brief. The commentary reflects the Ninth Circuit's August 2026 decision vacating the Bad Spaniels tarnishment injunction and the post-2023 cases on use as a mark, including Vans v. MSCHF and Punchbowl v. AJ Press. Every template is meant to be adapted to the controlling circuit and the facts, and the toolkit points to the companion article, guide, and checklist for the doctrine.

Most trademark fair use disputes are decided by documents written before anyone imagined a lawsuit: the style guide that told a copywriter to name a competitor in plain type, the comparison chart that footnoted its sources, the naming memo that explained why a descriptive phrase was chosen. When the demand letter arrives, those papers either prove good faith or prove the opposite. This toolkit supplies them, along with the letters, pleadings, and briefing outlines that put them to work.

How to use this toolkit

Each template states its purpose, its owner (who should prepare or maintain it), and when to use it, then gives the template and a drafting commentary. Bracketed text in capitals is to be filled in. Templates 1 to 6 are preventive and belong to marketing and in-house legal; Templates 7 to 13 are for disputes and belong to litigation counsel on either side.

Template Side Stage
1. Nominative use guidelines and phrasing chart Brand users Adopt once; train annually
2. Reference-use review request Brand users Before launch
3. Descriptive copy worksheet Brand users Before launch or on a watch notice
4. Comparative advertising clearance memo Advertisers Before launch
5. Model comparison chart Advertisers Before launch
6. Model disclaimers and attribution legends Brand users Before launch
7. Parody and expressive-use risk memo Both Before launch or on a demand
8. Response to a cease-and-desist letter Accused user Within the deadline
9. Answer language for fair use defenses Defendant Responsive pleading
10. Motion outlines: dismissal and summary judgment Both Rule 12 and Rule 56
11. Fair use evidence matrix Both Discovery through trial
12. Targeted discovery requests Both Fact discovery
13. Survey and expert planning brief Both Before expert deadlines

The short version. The templates put three rules into practice. Refer to other companies' brands with plain words and an accurate description of the relationship. New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992). Describe your own products with ordinary words presented as words, not as brands. 15 U.S.C. § 1115(b)(4). And if a project uses someone else's mark as a brand, even as a joke, treat it as a full likelihood-of-confusion and dilution problem, because after Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023) neither Rogers nor the parody exclusion protects a use that identifies the source of the user's own goods. The doctrine is explained in Trademark Fair Use: Descriptive Use, Nominative Use, and Expressive Works After Jack Daniel's; the sequence of tasks is in the Trademark Fair Use Analysis Checklist: A Practical Checklist; and the litigation path is in Asserting or Defeating a Trademark Fair Use Defense: A Practical Guide.

Template 1: Nominative use guidelines and phrasing chart

Purpose: a short internal policy telling marketers how to refer to other companies' brands. Owner: in-house counsel drafts it; brand or marketing operations owns it and trains on it. When to use: adopt once, attach it to the creative brief template, and refresh it annually or after any dispute.

[COMPANY] GUIDELINES FOR REFERRING TO OTHER COMPANIES' TRADEMARKS
Version [X] · Effective [DATE] · Owner: [BRAND OPERATIONS] · Legal: [NAME]

1. WHEN YOU MAY NAME ANOTHER COMPANY'S PRODUCT
   To say truthfully that our product works with it, replaces it, competes
   with it, or compares to it, or to describe a service we perform on it
   (repair, installation, migration, resale of genuine goods).

2. USE WORDS, NOT LOGOS
   Use the product name in plain text, in our font and our colors. Do not
   use the other company's logo, icon, stylized lettering, mascot, color
   scheme, packaging, or product photography without written Legal approval.

3. USE ONLY WHAT YOU NEED
   Name the product where it helps the reader. Never repeat it as
   decoration, in background patterns, or in place of our own brand.

4. DESCRIBE THE RELATIONSHIP ACCURATELY
   Use: "works with," "compatible with," "for use with," "independent,"
   "alternative to." Do not use "official," "authorized," "certified,"
   "approved," "partner," or "endorsed" unless a current written agreement
   says so. Check the partner register kept by [TEAM].

5. KEEP THEIR MARKS OUT OF OUR NAMES
   No third-party marks in our product, feature, app, or collection names,
   domain names, social handles, hashtags we create, or ad account names.

6. OUR BRAND COMES FIRST
   Our brand is the most prominent brand in every asset.

7. ATTRIBUTE
   Add the attribution legend (Template 6, Clause C) wherever third-party
   marks appear on web pages, data sheets, and decks.

8. COMPARISONS NEED PROOF BEFORE THEY RUN
   Any claim that we are better, faster, cheaper, or equal goes through
   comparative advertising clearance (Template 4) first.

9. HUMOR, PARODY, AND "INSPIRED BY" WORK
   Anything that imitates another company's name, logo, packaging, or
   slogan, even as a joke, needs Legal review before creative work starts.

10. SEARCH AND SOCIAL ADVERTISING
    No competitor marks in ad text without Legal approval. Keyword bidding
    on competitor names follows [POLICY].

11. PARTNER PROGRAMS
    If we belong to a partner program, its brand rules govern and may be
    stricter than these guidelines.

12. QUESTIONS
    Submit a Reference-Use Review Request (Template 2). Legal answers
    routine requests within [2] business days.

Pin this chart beside the guidelines:

Phrase Acceptable when Risk if misused Safer form
"Works with [X]" / "Compatible with [X]" True and tested on current versions Implied certification "Tested with [X] version [N] on [date]"
"For [X]" / "Fits [X]" Parts and accessories that fit Suggests [X] made it "Fits [X] models [list]; not made by [X]"
"Replacement for [X]" Functionally equivalent False if not equivalent "Replaces [X part no.]; meets [spec]"
"Compare to [X]" Matching ingredients or specifications Look-alike packaging implies a common source Our own trade dress; [X] in plain type
"Alternative to [X]" Competing products Low As written
"Better than [X]" / "[N]% faster than [X]" Substantiated before publication False advertising State the test, date, and conditions
"Authorized," "certified," "official," "partner" Current written agreement Strong sponsorship implication "Independent [X] specialist"
"[X]-style" / "inspired by [X]" Rarely Trade dress and dilution claims Describe the feature, not the brand
"[X]" inside our product, domain, or handle Never without Legal Use as a mark A name of our own

Drafting commentary. Each rule tracks a case. Rules 2 and 3 implement the second New Kids requirement, that the user take only so much of the mark as is reasonably necessary: a former Playmate could describe herself with Playboy's words but not with "PMOY '81" wallpaper, Playboy Enterprises, Inc. v. Welles, 279 F.3d 796 (9th Cir. 2002), and the Lexus broker's stylized mark and "L" logo went too far. Toyota Motor Sales, U.S.A., Inc. v. Tabari, 610 F.3d 1171 (9th Cir. 2010). Rule 4 implements the third requirement, nothing that suggests sponsorship; a single word can do the damage, as "Master CISSP" showed in International Information Systems Security Certification Consortium, Inc. v. Security University, LLC, 823 F.3d 153 (2d Cir. 2016), and as billing a band as "The Beach Boys" did in Brother Records, Inc. v. Jardine, 318 F.3d 900 (9th Cir. 2003). "Independent" is the word that kept a Volkswagen mechanic on the right side of the line, although the trial court had found his earlier trade name, "Modern Volkswagen Porsche Service," unlawful. Volkswagenwerk Aktiengesellschaft v. Church, 411 F.2d 350 (9th Cir. 1969). Rule 5 reflects the domain-name cases, PACCAR Inc. v. TeleScan Technologies, L.L.C., 319 F.3d 243 (6th Cir. 2003), and the post-2023 rule that putting another's mark in your own name is the definition of use as a mark. Rule 10 reflects that keyword advertising built on a competitor's mark is a use in commerce, Rescuecom Corp. v. Google Inc., 562 F.3d 123 (2d Cir. 2009) (Google's sale of trademarks as keywords), and that liability turns on what the consumer sees on the results page. Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011). The keyword and marketplace issues are developed in Trademark Liability Online: Keyword Advertising, Marketplaces, and Contributory Infringement After Tiffany v. eBay.

The guidelines are deliberately stricter than the law. A team that follows them will rarely need the law's outer limits, and a written policy followed in practice is good evidence of good faith. Do not adopt rules the company will not follow: a violated internal policy is an exhibit for the other side. If the business also licenses its own marks to others, align these rules with the outbound brand guidelines in the Distinctiveness Toolkit: Secondary Meaning Declarations, Genericness Surveys, and Brand Usage Guidelines.

Template 2: Reference-use review request

Purpose: give Legal the facts it needs to answer quickly, and create a dated review record. Owner: the requester completes it; Legal decides. When to use: before any asset that names a third-party brand in a headline, imitates any element of another brand, or makes a comparative claim.

REFERENCE-USE REVIEW REQUEST            No. ______   Date ______
Requester / team: ______________        Launch date: __________

1. ASSET: type (web / ad / packaging / listing / video / social / email)
   Attach the draft exactly as it will run, in every size and placement.
2. OTHER BRAND: mark(s) named ________  owner ________
   Partner, reseller, or license program with them?  Y / N  (attach rules)
3. WHY WE NAME THEM:  [ ] compatibility  [ ] repair/service
   [ ] resale of genuine goods  [ ] comparison  [ ] commentary or humor
4. HOW WE NAME THEM:  plain text only?  Y / N
   Logos, icons, colors, or images?  Y / N   Number of mentions: ____
   Largest type size of their mark: ____  of OUR mark: ____
5. CLAIMS about their product (list each; attach support and its date)
6. RELATIONSHIP WORDS USED (circle): works with / compatible / for /
   replacement / alternative / authorized / certified / official / partner
7. DISCLAIMER OR ATTRIBUTION (quote it and say where it appears)
8. DOES ANYTHING IMITATE THEIR NAME, PACKAGING, SLOGAN, OR LOGO?  Y / N

LEGAL: [ ] approved  [ ] approved with changes  [ ] rejected
Changes: _____________________  Reviewer ______  Date ______

Drafting commentary. The form doubles as the review log that proves good faith later; file each completed form with the final approved asset. Question 4 asks for type sizes because courts compare the presentation of the borrowed term with the house mark. Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Management, Inc., 618 F.3d 1025 (9th Cir. 2010); Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947 (7th Cir. 1992). Question 8 sends anything that might be use as a mark to the Template 7 memo, and Question 5 sends claims to Template 4.

Template 3: Descriptive copy worksheet

Purpose: record why a word that appears in someone else's registration is being used in its ordinary sense. Owner: product marketing, reviewed by Legal. When to use: when a clearance search, a watch notice, or a demand letter shows that descriptive copy overlaps a registered mark.

DESCRIPTIVE COPY WORKSHEET                 Term: "__________________"
Registrant / reg. no. / goods: _____________________________________
Standard characters or stylized? ______    Incontestable? Y / N

1. ORDINARY MEANING
   Dictionary definitions (attach)
   Industry and competitor usage (attach at least three examples)
   Registrant's own descriptive usage, if any (attach)
2. WHAT THE TERM DESCRIBES IN OUR PRODUCT
   Feature / ingredient / flavor / function / shape / quality / origin:
3. ALTERNATIVES CONSIDERED, AND WHY THIS TERM WAS CHOSEN
4. PRESENTATION (attach the layout)
   Case: sentence / title / ALL CAPS      Same font as body text? Y / N
   ™ or ® next to the term? Y / N (must be N)
   Our house mark on the same panel or screen? Y / N   Larger? Y / N
   Is the term the name of a product, feature, line, or collection? Y / N
   (If Y, stop: that is a naming decision that needs clearance.)
5. GOOD FAITH
   When and how did we first learn of the registrant? ______________
   Any documents discussing the registrant's success or customers? ___
6. CONCLUSION AND CONDITIONS OF USE
Prepared by ______    Reviewed by ______    Date ______

Drafting commentary. The worksheet follows the three elements courts apply: use otherwise than as a mark, in a descriptive sense, and in good faith. Kelly-Brown v. Winfrey, 717 F.3d 295 (2d Cir. 2013). Section 1 gathers the kind of evidence that ended that case on remand, where the plaintiffs' own descriptive use of "own your power" helped show the phrase was descriptive. Kelly-Brown v. Winfrey, 659 F. App'x 55 (2d Cir. 2016). Section 3 answers one of the considerations the Ninth Circuit listed on remand in KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596 (9th Cir. 2005): whether other descriptive terms were available. Section 4 reflects that a famous house mark nearby does not help if the term is itself presented as a brand, Sands, 978 F.2d 947, and that a word styled like the user's own sub-brands can be a mark, Fortune Dynamic, 618 F.3d 1025. Section 5 matters because knowledge of the registrant is not bad faith, Star Industries, Inc. v. Bacardi & Co., 412 F.3d 373 (2d Cir. 2005), while documents showing the term was picked to trade on the registrant's goodwill are what lose the defense. EMI Catalogue Partnership v. Hill, Holliday, Connors, Cosmopulos Inc., 228 F.3d 56 (2d Cir. 2000). The descriptive users who won summary judgment, in Cosmetically Sealed Industries, Inc. v. Chesebrough-Pond's USA Co., 125 F.3d 28 (2d Cir. 1997), SportFuel, Inc. v. PepsiCo, Inc., 932 F.3d 589 (7th Cir. 2019), and Sorensen v. WD-40 Co., 792 F.3d 712 (7th Cir. 2015), had records that looked like this. A worksheet completed before launch persuades because nobody had a reason to shade it.

Template 4: Comparative advertising clearance memo

Purpose: confirm that every comparative claim is true, substantiated, and presented without implied sponsorship. Owner: Legal, with the product owner for each claim and whoever ran the tests. When to use: before any ad, web page, chart, sales deck, or social post that names a competitor and says something about it.

PRIVILEGED AND CONFIDENTIAL · ATTORNEY-CLIENT COMMUNICATION
COMPARATIVE ADVERTISING CLEARANCE MEMO
To: [MARKETING LEAD]   From: [COUNSEL]   Date: [  ]   Asset: [  ]

I.    ASSETS REVIEWED (version, channel, planned run dates)
II.   NET IMPRESSION: what a reasonable consumer takes away, express and implied
III.  CLAIM INVENTORY
      No. | Claim text | Type: superiority / parity / price / preference /
          | "tests prove" | Express or implied | Support | Status
IV.   SUBSTANTIATION, PER CLAIM
      Method; who ran it; sample; dates; product versions and tiers
      compared; how the competitor's product was obtained; where the raw
      data is kept; limitations disclosed in the ad
V.    MARK USAGE: plain text only? logos or trade dress? relationship
      words? our brand most prominent?
VI.   DISCLOSURES AND QUALIFIERS (exact text, placement, type size)
VII.  PUFFERY VERSUS MEASURABLE CLAIMS (and why each is classified so)
VIII. LIKELY CHALLENGER AND FORUM (court / NAD / platform / regulator)
IX.   APPROVAL, CONDITIONS, AND REVERIFICATION DATE

Drafting commentary. Section II comes first because courts and the FTC judge the message an ad conveys, not only its literal words. A claim can be false by necessary implication, Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144 (2d Cir. 2007), and pictures make claims too: a commercial showing an athlete squeezing an orange straight into a carton was literally false for juice that was pasteurized and sometimes frozen. Coca-Cola Co. v. Tropicana Products, Inc., 690 F.2d 312 (2d Cir. 1982). Section III singles out "tests prove" claims because a challenger can show literal falsity simply by showing that the cited tests are not sufficiently reliable to establish the claim. Castrol, Inc. v. Quaker State Corp., 977 F.2d 57 (2d Cir. 1992). Section IV implements the FTC's reasonable-basis requirement under 15 U.S.C. § 45 and 15 U.S.C. § 52 and its 1984 Policy Statement Regarding Advertising Substantiation; the Commission's comparative advertising statement, 16 C.F.R. § 14.15, welcomes the naming of competitors but applies the same truthfulness standard. Section VII separates puffery from measurable claims. A specific superiority claim that invokes testing is not puffery, Castrol Inc. v. Pennzoil Co., 987 F.2d 939 (3d Cir. 1993), and even a vague slogan can carry a measurable claim when it is tied to specific comparisons. Pizza Hut, Inc. v. Papa John's International, Inc., 227 F.3d 489 (5th Cir. 2000). Section VIII asks who can sue: a competitor whose injury flows from the ad has standing, Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014), and must prove a false or misleading statement of fact, actual or likely deception, materiality, interstate commerce, and injury. Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134 (9th Cir. 1997). Nominative fair use answers only the trademark question; it is no defense to falsity under 15 U.S.C. § 1125(a)(1)(B).

The memo is privileged when it gives legal advice, but the substantiation is not. Keep the test reports, price captures, and data in a separate file that can be produced, because it will be the first thing a challenger requests. The False Advertising Toolkit: Substantiation Files, Surveys, and Injunction Briefing has a substantiation file template, and the Advertising and Consumer Protection Compliance Toolkit covers the regulatory side.

Template 5: Model comparison chart

Purpose: show by example how a comparison chart can name competitors and make claims that hold up. Owner: product marketing, with a completed Template 4 memo. When to use: any pricing page, data sheet, sales deck, or ad that compares features or prices.

Suppose Juniper Ledger, a bookkeeping app, wants a comparison table on its pricing page. The design team's draft used each rival's logo as a column header, shaded each column in the rival's brand color, compared Juniper's paid tier against the rivals' free tiers, and announced "the fastest sync in accounting." This is the cleared version:

Feature Juniper Ledger Pro Tallyworks Business (1) Brightbook Plus (1)
List price per month, billed annually (2) $29 $45 $39
Connected bank accounts included Unlimited 5 10
Integration listed in the Ledgerline app directory (3) Yes Yes No
Median time to sync 10,000 transactions (4) 41 seconds 63 seconds Not tested (5)

Notes to the chart. (1) Tallyworks and Brightbook are trademarks of their respective owners; Juniper is not affiliated with or endorsed by either company. (2) List prices from each company's public pricing page, captured [DATE]; promotional pricing excluded; prices change. (3) As listed in the Ledgerline app directory on [DATE]. (4) Juniper test of [DATE] in [ENVIRONMENT]; methodology at [URL]; results vary with configuration. (5) Brightbook Plus does not offer bulk sync at this tier.

Drafting commentary. The logos came out and every name now appears in Juniper's own type, because nominative use permits the words a reader needs and no more. Welles, 279 F.3d 796; Tabari, 610 F.3d 1171. The columns compare paid tiers of similar scope, since a comparison between unequal products can mislead by necessary implication even when every number is accurate. Time Warner Cable, 497 F.3d 144. "The fastest sync in accounting" became a measured figure against two named products, with a disclosed method and date; an unqualified superiority claim about a whole market needs support across that market. "Not tested" replaced a guess. Dated captures of each pricing page go into the substantiation file and will need authentication under Fed. R. Evid. 901 if the chart is ever challenged. Set a reverification date, because a chart that was true in March can be false in June, and nobody will care that the competitor changed its prices. Naming the rivals at all is lawful, Smith v. Chanel, Inc., 402 F.2d 562 (9th Cir. 1968), and comparative advertising sits inside the federal dilution exclusion so long as the rival's mark is not used as Juniper's own designation of source. § 1125(c)(3)(A)(i).

Template 6: Model disclaimers and attribution legends

Purpose: standard language for non-affiliation, attribution, independent service, compatibility, resale, and parody. Owner: Legal. When to use: wherever a third-party mark appears prominently, placed next to the reference in the same type size as the surrounding text.

A. NON-AFFILIATION
   [COMPANY] is not affiliated with, sponsored by, or endorsed by [OWNER].
   [MARK] is a trademark of [OWNER].

B. INDEPENDENT SERVICE PROVIDER
   We are an independent repair shop. We are not an authorized [MARK]
   dealer or service center, and [OWNER] does not sponsor or endorse our
   services. We tell you in writing when we use parts not made by [OWNER].

C. ATTRIBUTION LEGEND (footers, data sheets, decks)
   All product and company names are trademarks or registered trademarks
   of their respective holders. Their use does not imply any affiliation
   with or endorsement by them.

D. COMPATIBILITY
   Compatible with [MARK] [VERSIONS] as tested by [COMPANY] on [DATE].
   [OWNER] has not tested or certified this product.

E. RESALE OF GENUINE GOODS
   We are an independent reseller of genuine [MARK] products obtained from
   [SOURCE]. [OWNER] is not affiliated with this store. [WARRANTY TERMS.]

F. PARODY OR COMMENTARY
   This is a parody. It is not made, sponsored, or approved by [OWNER].

Drafting commentary. Disclaimers help most when the reference is already modest; they cannot rescue a use that copies a logo or trade dress or uses the mark as a brand. Size and placement decide whether a disclaimer counts. A large disclaimer at the top of the Lexus broker's site counted in its favor, Tabari, 610 F.3d 1171; a notice running sideways in tiny type was noticed by about 3.5 percent of survey respondents, Anheuser-Busch, Inc. v. Balducci Publications, 28 F.3d 769 (8th Cir. 1994); and a non-affiliation line on the back of the Bad Spaniels hangtag did not stop the Supreme Court from treating the toy's name as a mark. Jack Daniel's, 599 U.S. 140. Advertisements that called a hitch designer "Jim Hensley," described his history, and said he was "no longer affiliated" with his former company helped win dismissal on the pleadings. Hensley Manufacturing v. ProPride, Inc., 579 F.3d 603 (6th Cir. 2009). Clause B follows Volkswagenwerk, 411 F.2d 350, and the disclosure rule for reconditioned goods in Champion Spark Plug Co. v. Sanders, 331 U.S. 125 (1947). Clause E follows Prestonettes, Inc. v. Coty, 264 U.S. 359 (1924) and Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010), but it is accurate only for goods that are materially identical to the authorized versions; see Gray Market Goods and the First Sale Doctrine: Parallel Imports, Material Differences, and Exhaustion. Clause F is a backstop, not a defense: a parody that needs a label to be understood is already in trouble, and a parody used as a product name must go through Template 7 first.

Template 7: Parody and expressive-use risk memo

Purpose: decide which legal regime governs a use that borrows a famous mark for humor, art, or commentary, and what that means for risk. Owner: trademark counsel, in-house or outside. When to use: before launching any product, campaign, digital collection, or creative work that imitates another company's mark, and on receipt of a demand aimed at one.

PRIVILEGED AND CONFIDENTIAL · ATTORNEY WORK PRODUCT
RE: Use of [MARK] in [PROJECT]

1. THE USE: every placement, with images (product, packaging, hangtag,
   listing, ads, social, domain, NFT metadata)
2. THRESHOLD: IS THE BORROWED ELEMENT A SOURCE IDENTIFIER FOR OUR GOODS?
   Placement / ™ or ® / name of a product, line, series, or business? /
   applications filed? / how our own pleadings and press describe it
   -> Used as a mark: skip 3; go to 4 and 5
   -> Not used as a mark: go to 3, then 4 as a fallback
3. ROGERS (titles and content of expressive works, where the circuit uses it)
   Artistic relevance / any explicitly misleading statement
4. LIKELIHOOD OF CONFUSION, WITH PARODY AS A FACTOR
   Target of the joke / is the contrast obvious at first glance? /
   closeness of the copy / channels and price / survey plan
5. DILUTION (if any claimed senior mark may be famous)
   For EACH senior mark: fame. For EACH borrowed element: similarity.
   Blurring evidence. Tarnishment evidence specific to these products,
   accounting for the parody. Exclusions (lost if used as a mark).
6. STATE-LAW AND RIGHT OF PUBLICITY CLAIMS
7. RISK RATING, CHANGES THAT LOWER IT, RECOMMENDATION

Drafting commentary. Section 2 decides most of the memo. When the user employs the borrowed mark as a designation of source for its own goods, Rogers does not apply, and neither the parody exclusion nor the noncommercial-use exclusion shields it from a dilution claim. Jack Daniel's, 599 U.S. 140. Courts have since applied that rule to MSCHF's "Wavy Baby" sneakers, Vans, Inc. v. MSCHF Product Studio, Inc., 88 F.4th 125 (2d Cir. 2023), to the name of a political newsletter, Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022 (9th Cir. 2024), and to "MetaBirkins" NFTs. Hermès International v. Rothschild, 678 F. Supp. 3d 475 (S.D.N.Y. 2023). Section 3 is for titles and content of works that do not function as marks, and because three Justices urged lower courts to "handle Rogers v. Grimaldi with care," it always needs a fallback. Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989); Gordon v. Drape Creative, Inc., 909 F.3d 257 (9th Cir. 2018). Section 4 asks whether the joke lands at first glance: compare "Chewy Vuiton," Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252 (4th Cir. 2007), with the "Michelob Oily" fake ad in Balducci, 28 F.3d 769, and the too-faithful Wavy Baby.

Section 5 reflects the Ninth Circuit's August 2026 decision in the Bad Spaniels appeal. After the district court found on remand that Jack Daniel's had not shown likely confusion but had proved dilution by tarnishment, the Ninth Circuit vacated the injunction and remanded for entry of judgment for VIP on the dilution claim. VIP Products, LLC v. Jack Daniel's Properties, Inc., No. 25-2027 (9th Cir. Aug. 4, 2026). The court required a tarnishment plaintiff to prove fame, similarity, and likely reputational harm mark by mark. Only "Jack Daniel's" and the registered trade dress had been proved famous, so "Old No. 2" and "43% POO BY VOL." dropped out of the analysis. The expert's general consumer-psychology testimony about disgust, with no study of the toy itself and no account of its obvious parody, could not show that jokes on a dog toy would harm the reputation of a whiskey. The court did not reach VIP's constitutional challenge to the tarnishment provision. For brand owners, the lesson is to prove fame for each mark claimed and to build harm evidence about the actual products; for parody sellers, it is to make the parody obvious and to keep the toy, shirt, or campaign far from the plaintiff's own product category. The same company's earlier "Buttwiper" toy shows the other half of the risk: Anheuser-Busch won a preliminary injunction on its infringement claim with a survey but lost on dilution for lack of proof. Anheuser-Busch, Inc. v. VIP Products, LLC, 666 F. Supp. 2d 974 (E.D. Mo. 2008). For the dilution elements generally, see Trademark Dilution Under the TDRA: Blurring, Tarnishment, and What It Means to Be Famous; for Section 6, the Publicity and Free Speech Toolkit: Transformative Use Memos, Newsworthiness Analyses, and Anti-SLAPP Motions.

Template 8: Response to a cease-and-desist letter asserting fair use

Purpose: answer a demand in a way that ends the matter or positions the client well if it does not end. Owner: counsel for the accused user. When to use: after the use has been captured and analyzed (Templates 3 and 7), within the deadline in the demand or a short extension.

[DATE]
BY EMAIL
[CLAIMANT'S COUNSEL]
Re: [CLIENT]'s use of "[TERM]"; your letter of [DATE]

Dear [NAME]:

We represent [CLIENT] and respond to your letter of [DATE]. We have
reviewed each use your letter identifies and every other current use of
"[TERM]" by [CLIENT]. [CLIENT] respects [OWNER]'s rights and has no
interest in suggesting any connection with [OWNER]. Its use is lawful.

1. The use. [Each use, with images at Exhibit A; dates of first use;
   channels.]

2. [DESCRIPTIVE USE] "[TERM]" appears in its ordinary sense to describe
   [FEATURE] of [CLIENT]'s own product, in sentence case, beside the
   [HOUSE MARK] brand, which is the only brand on the [package/page].
   [Dictionary and industry usage at Exhibit B.] That is a use
   "otherwise than as a mark" made "fairly and in good faith only to
   describe" [CLIENT]'s goods. 15 U.S.C. § 1115(b)(4); KP Permanent
   Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004).
   [OR: NOMINATIVE USE] [CLIENT] names [OWNER]'s product only to tell
   customers that it [repairs / works with / resells / compares against]
   that product. It uses the name in plain text, without logos or
   stylization, and states that it is independent. [Circuit authority.]

3. [Response to any specific objection: logo, domain, claim, disclaimer.]

4. Although no change is legally required, [CLIENT] has [removed / added
   / revised] [DESCRIBE], effective [DATE].

5. If [OWNER] contends that any specific use remains unlawful, please
   identify it and the basis for that view. [CLIENT] reserves all rights.

Sincerely,

Drafting commentary. Write for the judge who may read the letter as an exhibit. Facts and images persuade; adjectives do not. Paragraph 4 is optional, but a voluntary, low-cost change (removing a logo, adding "independent," moving a disclaimer) often ends a nominative dispute. If the client wants to trade a change for a release, put the offer in a separate communication marked as a settlement proposal; Fed. R. Evid. 408 limits the use of compromise offers to prove liability, but it does not make anything confidential, and courts admit such communications for other purposes. Continuing a descriptive use after a demand is not bad faith by itself, Dessert Beauty, Inc. v. Fox, 568 F. Supp. 2d 416 (S.D.N.Y. 2008), but ignoring a specific, well-founded objection can look like it. If the claimant threatens suit, the client can file first for a declaratory judgment under 28 U.S.C. § 2201, as VIP did in 2014. The mirror-image documents are in Responding to a Trademark Cease-and-Desist Letter and Drafting a Trademark Cease-and-Desist Letter; a claimant should run the Trademark Fair Use Analysis Checklist before sending anything, because a demand that ignores an obvious fair use becomes an exhibit in any later fee motion under 15 U.S.C. § 1117(a) if the claimant sues and loses.

Template 9: Answer language for fair use defenses

Purpose: preserve every fair use defense with enough facts to survive a motion to strike. Owner: defense counsel. When to use: in the answer, or in an amended answer under Fed. R. Civ. P. 15 when discovery turns up new facts.

[__] DEFENSE: DESCRIPTIVE FAIR USE (15 U.S.C. § 1115(b)(4))
Plaintiff's claims are barred because Defendant uses "[TERM]" otherwise
than as a mark, only to describe [FEATURE] of Defendant's own goods,
fairly and in good faith. Defendant presents the term in [ordinary type,
in sentence case]; Defendant's [HOUSE MARK] appears on every [package/page]
and is the only mark Defendant uses to identify the source of its goods;
and Defendant adopted the term because [DESCRIPTIVE REASON], as its
[DOCUMENTS] reflect.

[__] DEFENSE: NOMINATIVE FAIR USE
Defendant refers to "[MARK]" only to identify Plaintiff's own products in
order to [repair / work with / compare to] them. Those products are not
readily identifiable without the name; Defendant uses only the word mark
in plain text, with no logos or trade dress; and Defendant states that it
is independent of Plaintiff.

[__] DEFENSE: EXPRESSIVE WORK AND FIRST AMENDMENT
"[TITLE]" is the title of [a single expressive work]. It is artistically
relevant to that work, does not explicitly mislead as to source or
content, and is not used as a designation of source for any goods.

[__] DEFENSE: DILUTION EXCLUSIONS (15 U.S.C. § 1125(c)(3))
Defendant's use is excluded as [fair use other than as a designation of
source / comparative advertising / commentary or criticism / news
reporting / noncommercial use].

[__] DEFENSE: UNCONSTITUTIONALITY OF [PROVISION] [only if asserted]
[PROVISION] violates the First Amendment on its face and as applied to
Defendant's [speech]. Defendant is filing a notice of constitutional
question under Fed. R. Civ. P. 5.1.

DENIAL: Defendant denies that it uses "[TERM]" as a trademark, service
mark, trade name, or other designation of source.

Drafting commentary. Plead facts, not labels. District courts are divided on whether the plausibility standard applies to affirmative defenses, and a bare "fair use" line invites a motion to strike under Fed. R. Civ. P. 12(f) that a few factual sentences would prevent. Descriptive fair use is an affirmative defense the defendant must prove, though it never has to disprove confusion. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004). Nominative fair use is an affirmative defense in the Third Circuit, Century 21 Real Estate Corp. v. LendingTree, Inc., 425 F.3d 211 (3d Cir. 2005), and not one in the Second, Security University, 823 F.3d 153, or the Ninth, Tabari, 610 F.3d 1171; pleading it everywhere costs nothing, and the denial keeps the burden where it belongs. Constitutional challenges belong in the first responsive pleading under Fed. R. Civ. P. 8(c), with the notice that Fed. R. Civ. P. 5.1 requires and the certification under 28 U.S.C. § 2403. On the Bad Spaniels remand, the district court held that VIP had waived its facial challenge to the tarnishment provision by not raising it in its original pleadings, and the Ninth Circuit's 2026 decision never reached it. Finally, never allege in your own declaratory judgment complaint that the accused term is your trademark; VIP's complaint said exactly that, and the Supreme Court quoted it. More pleading forms are in the Responsive Pleading Toolkit: Answer Templates, Affirmative Defense Libraries, and Counterclaim Outlines.

Template 10: Motion outlines: dismissal and summary judgment

Purpose: skeletons for the three briefs that decide most fair use cases. Owner: litigation counsel. When to use: a motion to dismiss after service; summary judgment motions and oppositions after fact and expert discovery.

A. DEFENDANT'S MOTION TO DISMISS (Rule 12(b)(6))
   I.   The use, as shown in the complaint's own exhibits or the work itself
   II.  Standard; documents incorporated by reference; judicial notice
   III. The term is not used as a mark (answered from the exhibits)
   IV.  The defense appears on the face of the complaint
   V.   Alternatively, confusion is implausible as a matter of law
   VI.  Dilution: fame not plausibly alleged, or an exclusion applies
   VII. Dismissal with prejudice (the use is fixed, so amendment is futile)

B. DEFENDANT'S SUMMARY JUDGMENT MOTION (Rule 56)
   I.   Undisputed facts: one exhibit per use, presentation, house mark,
        adoption history, alternatives, dates
   II.  Standards; allocation of burdens under KP Permanent
   III. Not used as a mark   IV. Descriptive sense   V. Good faith
   VI.  Any confusion is consistent with fair use, and the plaintiff's
        evidence of it is thin
   VII. Each separately accused use, analyzed separately

C. PLAINTIFF'S OPPOSITION
   I.   Genuine disputes on each element; credibility is for the jury
   II.  Mark use: presentation, repetition, sub-brand pattern, ™,
        applications, the defendant's own descriptions
   III. Not descriptive: a borrowed hook, not a stock phrase
   IV.  Bad faith: chosen for the plaintiff's success; copied styling;
        better words ignored
   V.   The degree of confusion bears on fairness; actual confusion
   VI.  Nominative cases: wrong circuit test; implied sponsorship

Drafting commentary. Outline A works when the complaint itself shows the defense: the Sixth Circuit affirmed dismissal where the advertisements attached to the complaint always used the full name "Jim Hensley" and disclaimed any affiliation, Hensley, 579 F.3d 603, and the Southern District of New York dismissed a claim over a film's knockoff-bag joke under Rogers. Louis Vuitton Malletier S.A. v. Warner Bros. Entertainment Inc., 868 F. Supp. 2d 172 (S.D.N.Y. 2012). Ask the court to consider the work or ad under Fed. R. Evid. 201 or incorporation by reference. Even for uses that identify source, the Supreme Court cautioned that not every such case "requires full-scale litigation": when a plaintiff fails to plausibly allege likely confusion, the complaint should be dismissed under Rule 12(b)(6). Jack Daniel's, 599 U.S. 140 (footnote 2). The Ninth Circuit repeated the point when it sent Punchbowl back for a confusion analysis. Punchbowl, 90 F.4th 1022. The risk is the one that sank the first motion in Kelly-Brown: plausible allegations of mark use and bad faith. Kelly-Brown, 717 F.3d 295.

Outlines B and C follow the burden allocation: the defendant proves the defense, the plaintiff proves confusion, and the movant without the burden may point to the absence of evidence. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Fed. R. Civ. P. 56. Defendants win this motion often: Cosmetically Sealed, SportFuel, Sorensen, International Stamp Art, Inc. v. United States Postal Service, 456 F.3d 1270 (11th Cir. 2006), Dessert Beauty, and, for nominative use, Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477 (5th Cir. 2004). Plaintiffs win reversals by showing that the record supports competing inferences: EMI, 228 F.3d 56; Fortune Dynamic, 618 F.3d 1025; Marketquest Group, Inc. v. BIC Corp., 862 F.3d 927 (9th Cir. 2017), which also requires each materially different use to be analyzed on its own; and Security University, 823 F.3d 153. The general mechanics are in Summary Judgment Under Rule 56: Winning and Surviving Before Trial and Motions to Dismiss Under Rule 12: A Practical Guide for Plaintiffs and Defendants.

Template 11: Fair use evidence matrix

Purpose: map every element and issue to the proof, the witness, and the admissibility problem. Owner: the associate who manages the record. When to use: start it at the first case meeting and update it through the pretrial order.

Element or issue What proves it Witness Admissibility notes
Each accused use, as consumers saw it Dated captures, physical samples, ad archives Person who made the captures Authenticate under Fed. R. Evid. 901; summarize voluminous uses under Fed. R. Evid. 1006
Not used as a mark Layouts, house-mark prominence, absence of ™, no applications or licenses Designer; brand lead The opponent's own statements are not hearsay under Fed. R. Evid. 801(d)(2)
Descriptive meaning Dictionaries, trade press, competitor copy, the claimant's own usage Marketer or linguist Dictionary meanings are often judicially noticed
Good faith Naming memos, review records (Templates 2 and 3), clearance search, counsel's advice Marketer; counsel Business records under Fed. R. Evid. 803(6); relying on counsel's advice waives privilege on that subject
Alternatives Other descriptive terms and why each was rejected Marketer Contemporaneous documents beat testimony
Confusion, or its absence Survey; misdirected communications; years of coexistence Survey expert; records custodian Fed. R. Evid. 702; state of mind under Rule 803(3)
Nominative factors Asset inventory, relationship words, disclaimer size and placement Marketer Show the asset as it ran, not a mockup
Dilution, mark by mark Fame evidence for each claimed mark; similarity of each borrowed element; harm evidence about these products Brand executive; expert Generic testimony is not enough, per the 2026 Bad Spaniels decision

Drafting commentary. Two cells carry special risk. First, a party that relies on advice of counsel to prove good faith generally waives privilege over that advice, so decide early whether the clearance opinion will be used; The Shield of Good Faith: How Trademark Clearance Searches, Attorney Opinions, and USPTO Approval Protect Against Willful Infringement Claims explains the trade-off. Second, the dilution row now needs proof for each mark and each borrowed element, because the Ninth Circuit would not let the fame of "Jack Daniel's" carry "Old No. 7" with it. VIP Products, No. 25-2027. Count the confusion anecdotes against the volume of interactions, too: a dozen misdirected emails among millions of customer contacts proves little.

Template 12: Targeted discovery requests

Purpose: written discovery aimed at the elements that decide fair use cases. Owner: the litigation associate. When to use: the first wave of written discovery, after the Rule 26(f) conference.

DEFENDANT TO PLAINTIFF
INTERROGATORY: Identify every use by Plaintiff of "[TERM]" other than as a
  trademark (advertising copy, product descriptions, social media), with dates.
INTERROGATORY: Identify each instance of actual confusion Plaintiff
  contends occurred, the persons involved, and all related documents.
RFP: All demand letters, complaints, and settlement agreements concerning
  third-party use of "[TERM]" or similar terms.
RFP: All surveys, studies, and research on consumer perception of "[TERM]"
  or of Plaintiff's marks.
RFP [DILUTION]: Documents sufficient to show, for EACH mark Plaintiff
  claims is famous, its advertising, sales, and recognition before [DATE
  OF FIRST ACCUSED USE].
RFA: Admit that third parties use "[TERM]" to describe [FEATURE].
RFA: Admit that Defendant's [HOUSE MARK] appears on every accused product.

PLAINTIFF TO DEFENDANT
INTERROGATORY: Describe how Defendant selected "[TERM]," identify every
  person involved, and identify every alternative considered.
RFP: All naming memos, creative briefs, mood boards, drafts, and
  communications concerning "[TERM]" or Plaintiff.
RFP: All trademark searches, applications, registrations, licenses, and
  enforcement letters concerning "[TERM]."
RFP: Documents sufficient to show sales and advertising expenditures for
  products bearing "[TERM]."
RFA: Admit that Defendant knew of Plaintiff's registration before
  adopting "[TERM]."
RFA: Admit that Defendant has applied to register "[TERM]" as a trademark.
RULE 30(b)(6) TOPICS: adoption of the term; design and placement
  decisions; brand guidelines; review and approval records; enforcement.

Drafting commentary. Each request tracks something that decided a reported case. The registrant in Dessert Beauty had sent about 80 demand letters over "love potion" to other sellers, and the court still found the defendant's descriptive use fair. The Kelly-Brown defendants won in part with the plaintiffs' own descriptive use. In Jack Daniel's the defendant's own pleadings and registrations answered the threshold question, and in EMI the creative history created the fact issue on good faith: the agency's mockup had used "Sing, Sing, Sing" itself until the license proved too expensive. Keep the requests proportional under Fed. R. Civ. P. 26(b)(1); interrogatories are capped at 25, including discrete subparts, by Fed. R. Civ. P. 33(a)(1); document requests run under Fed. R. Civ. P. 34; a request for admission not answered within 30 days is deemed admitted under Fed. R. Civ. P. 36(a)(3); and the organizational deposition is governed by Fed. R. Civ. P. 30(b)(6).

Template 13: Survey and expert planning brief

Purpose: decide what an expert must prove and design the survey before anyone is retained. Owner: trial counsel, with the survey expert once retained. When to use: at least four months before the expert disclosure deadline.

SURVEY AND EXPERT PLANNING BRIEF            Case: ______   Side: ______
1. QUESTION: source or sponsorship confusion / secondary meaning /
   descriptive meaning / fame / blurring / tarnishment
2. UNIVERSE: prospective purchasers of the accused product (forward
   confusion) or of the senior user's product (reverse confusion)
3. FORMAT AND STIMULUS: Eveready / Squirt / other; the accused use as
   consumers actually meet it
4. CONTROL: what changes in the control cell and what stays the same
5. QUESTION WORDING: no legal vocabulary ("permission," "allowed,"
   "license") unless the design corrects for it
6. PARODY: does the respondent get the joke? separate source confusion
   from beliefs about whether parodies need permission
7. DILUTION: evidence about THESE marks and THESE products; account for
   the parody; fame among the general consuming public
8. LOGISTICS: sample size, field dates, validation, report deadline
   under Rule 26(a)(2), budget
9. RULE 702 READINESS: data, methods, and fit, documented so the proponent
   can carry its burden by a preponderance

Drafting commentary. Line 2 is where surveys most often fail: the vacuum maker's survey questioned existing Kirby owners rather than the people who would see the ad. Scott Fetzer, 381 F.3d 477. Lines 5 and 6 respond to Justice Sotomayor's concurrence in Jack Daniel's, which warned that respondents may believe every parody needs the target's permission, so a survey can turn a legal misunderstanding into apparent confusion. Surveys still win parody cases when they are built well: the Buttwiper survey supported a preliminary injunction, Anheuser-Busch, 666 F. Supp. 2d 974, and the Balducci survey showed that almost no one noticed the disclaimer. Line 7 responds to the 2026 Bad Spaniels decision, which rejected an expert's general consumer-psychology opinion because he never studied the toy and never accounted for its parody. VIP Products, No. 25-2027. Line 9 reflects the 2023 amendment to Rule 702, which made explicit that the proponent must show admissibility by a preponderance of the evidence. Reports must meet Fed. R. Civ. P. 26(a)(2)(B). For design and attack, see Consumer Survey Expert Methodology in Trademark Cases: A Practical Guide, Daubert Challenges to Consumer Survey Experts in Trademark Litigation: A Practical Guide, and the Expert Deposition Toolkit: Outline Frameworks, Reliance Material Requests, and Rule 26 Protection Maps.

This document is general information, not legal advice for any particular situation; the law changes, and the facts matter.

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