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IP News
Confusion Analysis in Fair Uses Cases Contested in Supreme Court
On Oct. 5, 2004, the Supreme Court heard arguments on the issue of whether an accused trademark infringer must demonstrate an absence of likelihood of confusion prior to asserting the defense of fair use or whether fair use is an absolute defense.
In KP Permanent Make-Up Inc. v. Lasting Impressions Inc., cert. granted 124 S. Ct. 981 (No. 03-409), both parties are competitors in the field of micropigmentation (also known as permanent makeup). Lasting owns a federal registration for the stylized formulation of the words “MICRO COLORS” and KP, who used “MICROCOLORS,” sued to have the mark declared generic. The district court held that the mark was generic and that KP's use was protected under the fair use doctrine. The Ninth Circuit reversed. See 328 F.3d 1061 (9th Cir. 2003). A full explanation of the facts and the holdings of the Ninth Circuit decision was presented in the April 2004 edition of the IP Strategist.
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