Fair-Use Defence: The End of Confusion?

This article first appeared in the World Trademark Law Report on January 19, 2005.

In its first trademark decision since Moseley v V Secret Catalogue Inc, the US Supreme Court has clarified some of the most disputed points relative to the fair-use defence. The court held in KP Permanent Make-Up Inc v Lasting Impression I Inc that (i) a party can successfully defeat a trademark infringement claim on the basis of fair use, even if such use will result in some consumer confusion, and (ii) that party is not required to prove that consumer confusion is unlikely. The court based its conclusion largely upon a reading of the statutory text and the legislative history of the Lanham Act.