(b) For purposes of this section, a mark is considered to be famous if the mark is widely recognized by the public throughout this state or in a geographic area in this state as a designation of source of the goods or services of the mark's owner. In determining whether a mark is famous, a court may consider factors including:

1. (1) the duration, extent, and geographic reach of the advertisement and publicity of the mark in this state, regardless of whether the mark is advertised or publicized by the owner or a third party;
2. (2) the amount, volume, and geographic extent of sales of goods or services offered under the mark in this state;
3. (3) the extent of actual recognition of the mark in this state; and
4. (4) whether the mark is registered in this state or in the United States Patent and Trademark Office.

(d) A person may not bring an action under this section for:

1. (1) a fair use, including a nominative or descriptive fair use, or facilitation of the fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services, including a fair use in connection with:

   1. (A) advertising or promoting that permits consumers to compare goods or services; or
   2. (B) identifying and parodying, criticizing, or commenting on the famous mark owner or the famous mark owner's goods or services;
2. (2) a noncommercial use of the mark; or

3. (3) any form of news reporting or commentary.

   Acts 2011, 82nd Leg., R.S., Ch. 563 (H.B. 3141), Sec. 1, eff. September 1, 2012.