(HEADLINE UPDATED) Tilt of the chapeau to law student Joe Gratz’s blog for reporting this decision from the U.S. Supreme Court that came down a month ago today. Here’s Joe’s summary and an excerpt from KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.:
The Supreme Court held, unsurprisingly and unanimously, that the affirmative defense of trademark fair use does not place a burden on the defendant to prove that his use was not only descriptive, but also unlikely to cause consumer confusion.
Now I’m not sure I agree with Joe’s comment on his blog that Justice Souter said it all so well; I prefer this pithier summary from the official syllabus: “Nor would it make sense to provide an affirmative defense of no confusion plus good faith, when merely rebutting the plaintiff’s case on confusion would entitle the defendant to judgment, good faith or not.”
By the way, want to guess which Circuit Court the Supreme overturned?
2 Replies to “SCOTUS: Likelihood of Confusion Bows to Fair Use”
Now I’m confused.
Your headline says that confusion trumps fair use, but it seems to me that the ruling is the other way around. Didn’t the court rule that an affirmative defense of fair use makes confusion irrelevant?
I fixed it. Thanks, Ronnie.
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