The Supreme Court has accepted certiorari on the question of whether the defense of fair use trumps a showing of likelihood of confusion. The case, KP Permanent Make-Up Inc. v. Lasting Impression Inc., arises from the Ninth Circuit decision reported at 328 F.3d 1061 (2003) that held the fair use defense inapplicable when a likelihood of confusion is present. The Court has accepted the case for its October 2004 term and is likely to hear oral argument in the fall.
The question presented to the Court is, “Does the classic fair use defense to trademark infringement require the party asserting the defense to demonstrate an absence of likelihood of confusion, as is the rule in the 9th Circuit, or is Fair Use an absolute Defense, irrespective of whether or not confusion may result, as in the rule in other Circuits?”
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