Various "defensive doctrines" might be employed to create space for third parties wishing to make legitimate use of features of registered non-traditional marks. This chapter explores one such doctrine: a requirement that infringing use be "use as a trademark." This doctrine, as it has been developed in countries such as Australia and New Zealand in cases involving non-traditional marks, is more complex than is often appreciated. At times it has been stretched to accommodate worthy policy

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... erations, which has caused tensions with other aspects of the registration system. At other times it has been applied too restrictively, unduly limiting the scope of permissible third party use of product features. The chapter offers suggestions as to how "trademark use" might be recalibrated to manage the full range of concerns raised by non-traditional marks, in a manner that affords owners adequate protection while leaving sufficient breathing room for third party users.