In its ruling, the court rejected the application of the eight likelihood of confusion factors and found that this new standard must be applied in evaluating nominative fair use cases within the Ninth Circuit. In New Kids, the court held that a defendant can use a plaintiff’s trademark to describe the plaintiff's product, rather than its own, as long as the defendant can meet three requirements: (1) the product or service in question must be one not readily identifiable without use of the trademark (2) only so much of the mark or marks may be used as is reasonably necessary to identify the product or service and (3) the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder. News America Publishing, Inc., 971 F.2d 302 (9th Cir. The Ninth Circuit first articulated the nominative fair use doctrine in New Kids on the Block v. In doing so, SCOTUS made one thing clear: the various approaches to the nominative fair use doctrine among the circuits will remain the law of the land – at least for now. In a recent disappointment to those advocating clarity for the muddy waters of determining permissible use of third-party trademarks under the nominative fair use doctrine, the Justices of the United States Supreme Court denied the petition for certiorari on the Second Circuit’s recent nominative fair use ruling.
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