I watched a stream yesterday that was posted on this subreddit of a lawyer reading through the information available around this Automattic Vs WPEngine drama. When he went to validate the claims of trademark infringement by looking at WPEngine's website, he immediately just said "nah all of this is clearly nominative fair use".
Has u/photomatt given his opinion on exactly what usage of the WordPress trademark WPEngine is doing that is infringement and not nominative or descriptive fair use? I know he mentioned a plan that doesn't seem to exist anymore called 'WordPress core' but beyond that all the usage of the WordPress trademark on WPEngine's site seems like standard fare.
I feel like this is kind of the core to this whole case and it doesn't seem like it's been properly addressed so far.
Generally fair use defenses tend to fail if a company is using someone else’s trademark for commercial purposes. There are exceptions, it’s a weighted decision by a judge and if there are mitigating factors, then a commercial defendant can win.
But usually those decisions rely on one of a few scenarios, e.g. comparative advertising/marketing (the Pepsi Taste test, or a Dyson vs Hoover chart on your website), or criticism (e.g. Tylenol publishes a blog post critisizing Bayer’s manufacturing), or journalism. You generally can’t imply an affiliation, endorsement, or partnership with a company.
I use the word generally a lot here because there are exceptions. And companies that don’t enforce their trademarks find it harder to make trouble for people who may technically break the law.