In 1992, the Court of Appeals for the Ninth Circuit articulated this new defense to trademark infringement. In New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992), the Ninth Circuit, in a typically articulate opinion by Judge Kozinski, described those circumstances in which the use of another's trademark is allowed, even when not directly covered by the statutory fair use defense of the Lanham Act:

[W]here 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 may be used as is reasonably necessary to identify the product or service; and third, the use must do nothing that would, in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.