“Fair Use” Trumps Likelihood of Confusion in Trademark Law the Supreme Court Rules in KP Permanent v. Lasting Impression
Michael Fuller In KP Permanent Make-Up, Inc., v. Lasting Impression I, Inc., the U.S. Supreme Court held that a defendant asserting the affirmative defense of fair use in response to a claim of trademark infringement does not have to shoulder the burden of proving there was no likelihood of confusion as a result of their fair use. The Supreme Court granted KP Permanent’s petition for certiorari in this matter to resolve a split among six of the federal courts of appeal. This article will first consider both the common law and statutory history underlying the fair use doctrine of trademark law....