“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....
Been Deep Linked? Apparent Authority Might Link You to Liability
Tan Pham Current trends in trademark law have not met the issue of deep linking with open arms. To date, there is a dearth of cases that touch on deep linking and trademark infringement. Cases such as Ticketmaster Corp. v. Tickets.com dismissed claims of deep linking as trademark infringement with little explanation, simply stating that deep linking itself is not a trademark violation absent “confusion of source.” Yet, there is no case to set the boundaries at the other end of when deep linking would be trademark infringement; it can be implied then that the traditional tests of likelihood of confusion would most...