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U.S. Supreme Court Addresses Statutory Fair Use Defense in Trademark Case
On December 8, 2004, the U.S. Supreme Court unanimously held that a defendant who invokes the fair use defense in a trademark infringement case has no independent burden to negate any likelihood that consumers will be confused about the origin of the goods or services affected. Souter J., writing for the Court, said that "since the burden of proving likelihood of confusion rests with the plaintiff, and the fair use defendant has no free standing need to show confusion unlikely, it follows (contrary to the Court of Appeals' view) that some possibility of consumer confusion must be compatible with fair use, and so it is."
This case between KP Permanent Make-Up and Lasting Impression involved the use of the term "microcolors", a term that KP Permanent Make-Up claimed to have used before Lasting Impression registered the mark in 1993. The term "microcolors" is used by both companies to describe products that change skin color with liquids in order to improve the skin's appearance. Souter J. reasoned that the common law tolerated a certain degree of confusion on the part of consumers since it was undesirable to allow "anyone to obtain a complete monopoly on use of a descriptive term simply by grabbing it first."
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