Fairness, Confusion Inversely Proportional

The Appellate Law & Practice blog wantonly beckons me via a gratuitous link to here (thanks!), in its discussion of a new Ninth Circuit opinion in the KP Permanent Makeup case — the decision, having bounced back from the Supreme Court, now being reversed by the Circuit. The Anonymous Appealler focuses, in part, on the Circuit’s suggestion that “likelihood of confusion is inversely proportional to fair use”. That’s certainly an interesting way to look at it, though as a “soft IP” man (“soft” modifying “IP,” not “man”) any time I hear terms like “inversely proportional” I reach for my revolver. Here are the marks, by the way, courtesy of the Ninth Circuit:

Now, I said “interesting,” but I’m not so sure how much I love that formulation. (See how soft?)