No, the newspapers did not break the law. The court said this was 'nominative fair use,' which is a fancy way of saying you can use a name to identify the person or thing you are talking about. How else could the newspapers run a poll about the New Kids without using their name? The court created a 3-part test for this: 1) You must be talking about something you can't easily identify otherwise. 2) You can only use as much of their name or logo as you absolutely need. 3) You can't make it seem like they are sponsoring you. The newspapers passed this test, so what they did was legal, even though they made money from the calls.

I say it's alright for the newspapers to use the New Kids' name in their polls because: (1) they needed to use the name so people knew who they were talking about; (2) they only used the name as much as they had to; and (3) they didn't do anything to make it seem like the New Kids supported the polls. The newspapers were just using the name to give information, not to trick people. This kind of use is allowed because it doesn't go against what trademarks are for - to show who made a product. The New Kids can't control every single use of their name, especially when it's just to identify them and doesn't pretend they endorse something.

To establish nominative fair use, first, "the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks may be used as is reasonably necessary to identify the product or service;[] and third, the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement …

—nominative fair use defense requires that "the user must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder

Court observed, "[m] uch useful social and commercial discourse would be all but impossible if speakers were under threat of an infringement lawsuit every time they made reference to a person, company or product by using its trademarks."

Such nominative use of a mark-where the only word reasonably available to describe a particular thing is pressed into service-lies outside the strictures of trademark law: Because it does not implicate the source-identification function that is the purpose of trademark, it does not constitute unfair competition; such use is fair because it does not imply sponsorship or …

—"where the defendant uses a trademark to describe the plaintiff's product, rather than its own, we hold that a commercial user is entitled to a nominative fair use defense provided he meets the following three requirements: First, the product or service in question must be one not readily identifiable without use of the trademark; second, only so much of the mark or marks …

A nominative fair use case is one "where the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one."

Given that the primary cost of recognizing property rights in trademarks is the removal of words from (or perhaps non-entrance into) our language,... the holder of a trademark will be denied protection if it is (or becomes) generic, ie, if it does not relate exclusively to the trademark owner's product.

The newspapers had conducted polls asking which member of the band New Kids On The Block was the best and most popular

Trademark law recognizes a "fair use" defense to infringement where the alleged infringer uses a mark only to describe the goods or services of a party or their geographic origin.

No. The newspapers' use of the trademark was a permissible 'nominative fair use' and therefore does not constitute trademark infringement. The court established a three-part test for this defense: first, the product must not be readily identifiable without using the trademark; second, only so much of the mark as is reasonably necessary for identification may be used; and third, the user must do nothing to suggest sponsorship or endorsement by the trademark holder. Here, it was impossible to conduct a poll about the New Kids without using their name. The newspapers used only the name and pictures, not distinctive logos, and their announcements did not suggest endorsement; in fact, USA Today's poll even asked if the group was 'a turn off.' The court rejected the argument that the for-profit nature of the 900-number polls made the use infringing, reasoning that trademark law does not grant the holder the right to control all commercial activities related to their identity, only those that cause consumer confusion about sponsorship.

I hold that the newspapers' use of the New Kids' trademark in their polls constitutes nominative fair use because: (1) the group was not readily identifiable without using the mark; (2) the newspapers used only as much of the mark as was reasonably necessary; and (3) the newspapers did nothing to suggest sponsorship or endorsement by the New Kids. The newspapers used the mark to identify the New Kids in an informational way, not to capitalize on consumer confusion. Such nominative use does not constitute trademark infringement because it serves the interests of trademark law without improperly infringing on the rights of the mark holder. The New Kids cannot control the use of their mark in every context, especially where the use is purely nominative and does not imply false endorsement.

New Kids on the Block v. News America Publishing, Inc.

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