"This site criticizes Canonical for certain privacy-invading features of Ubuntu and teaches users how to fix them. So, obviously, the site is not approved by Canonical."
"And our use of the trademarked term Ubuntu is plainly descriptive—it helps the public find this site and understand its message."
I disagree. askubuntu.com already exists and is officially sanctioned. From domain name alone, I think it's reasonable to assume that users will believe that fixubuntu.com is also officially sanctioned. Traffic generated by users being misled into going there is not legitimate in terms of the trademark.
OTOH, ubuntusucks.com is obviously critical commentary. I don't think that would (or should) be a trademark violation.
FixUbuntu is a very very very very clear case of nominative fair use.
I can't think of a less close case in recent memory.
They are using the trademark as it should be used - to describe the product they are talking about.
The fact that Ubuntu may not like what they are saying makes no difference.
The disclaimer makes clear it's not associated, and they don't pretend, anywhere, that they are associated.
Using the name Ubuntu to describe and criticize the product Ubuntu is fine. Appearing to be an official website to lure visitors in is not. That's passing off.
If walk into a branded store only to find a notice that it isn't actually that brand, it's still passing off.
> The disclaimer makes clear it's not associated...
This was only added in response to the "stop doing it" request.
2. Nominative fair use, as I mentioned, is a complete defense to trademark infringement (including passing off), and most other related things, including dilution.
If FixUbuntu claimed or implied they had a business relationship/etc, there would be an issue.
Trademarks do not give you the ability to stop others from using certain words, they give you the ability to stop others from confusing consumers about the source of goods.
Plus, you know, criticism of products is among the most protected speech possible when it comes to trademarks ...
This guys use of their mark clearly falls under the nominal use exception of fair use.