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KP PERMANENT MAKE-UP, INC. v. LASTING IMPRESSION I, INC., et al., 543 U.S. ---

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KP PERMANENT MAKE-UP, INC. v. LASTING
IMPRESSION I, INC., et al.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 03-409.Argued October 5, 2004--Decided December 8, 2004

Petitioner KP Permanent Make-Up, Inc., and respondents (collectively Lasting) all use the term "micro color" (as one word or two, singular or plural) in marketing permanent cosmetic makeup. The Court accepts KP's claim that it has used the single-word version since 1990 or 1991. In 1992, Lasting registered a trademark that included the words "Micro Colors" under 15 U. S. C. §1051, and, in 1999, the registration became incontestable, §1065. When Lasting demanded that KP stop using the word "microcolor," KP sued for declaratory relief. Lasting counterclaimed, alleging, inter alia, that KP had infringed Lasting's trademark. KP responded by asserting the statutory affirmative defense of fair use, §1115(b)(4). Finding that Lasting conceded that KP used "microcolor" only to describe its goods and not as a mark, the District Court held that KP was acting fairly and in good faith because KP undisputedly had employed the term continuously from before Lasting adopted its mark. Without enquiring whether the practice was likely to cause consumer confusion, the court concluded that KP had made out its affirmative defense under §1115(b)(4) and entered summary judgment for KP on Lasting's infringement claim. Reversing, the Ninth Circuit ruled that the District Court erred in addressing the fair use defense without delving into the matter of possible consumer confusion about the origin of KP's goods. The court did not pointedly address the burden of proof, but appears to have placed it on KP to show the absence of such confusion.

Held: A party raising the statutory affirmative defense of fair use to a claim of trademark infringement does not have a burden to negate any likelihood that the practice complained of will confuse consumers about the origin of the goods or services affected. Pp. 4-12.


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