Page:ASTM v. PRO (D.D.C. 2022).pdf/36

 :::e. Standard-By-Standard Analysis  The court has considered each of the 217 standards individually using the four fair-use factors. That analysis is included in the attached Appendix. For ease of reference, the standards are divided generally into three groups. See ASTM, 896 F.3d at 449 (recognizing that the standards may be “susceptible to groupings that are relevant to the fair use analysis”). The first group contains standards which Defendant has shown to be incorporated by reference into law. The second group comprises standards which are identical in text to standards incorporated by reference into law. And the third group comprises standards for which Defendant provided the court a regulation that incorporates a different substantive version of the standard than the one Defendant posted.

As shown in the Appendix, the court concludes that Defendant may not copy, reproduce, or distribute 32 standards that Defendant posted which differ in substantive ways from those incorporated by reference into law, that Defendant may copy, reproduce, or distribute 184 standards in their entirety, and may copy, reproduce, or distribute only specified portions of 1 standard. Thus, as to the 32 standards not shown to be incorporated by reference into law, the court will GRANT Plaintiffs’ motion for summary judgment and DENY Defendant’s motion for summary judgment. As to the 184 standards that Defendant may copy, reproduce, or distribute in their entirety, the court will DENY Plaintiffs’ motion for summary judgment and GRANT Defendant’s motion for summary judgment. And as to the 1 standard that Defendant may partially reproduce, the court will GRANT IN PART and DENY IN PART both motions.
 * B. Lanham Act: Nominative Fair Use of Trademarks 

To establish a trademark infringement claim under the Lanham Act, Plaintiffs “must show that [Defendant] used in commerce, without [Plaintiffs’] consent, a ‘reproduction,