Trademark Infringement and the Fair Use Defense

• Posted by Geoffrey G. Gussis on July 21st, 2005


• Filed in Intellectual Property

Head over to Mondaq to read a Fenwick & West LLP article about a Supreme Court decision that resolved a split in the appellate courts on the significance of likelihood of confusion in a fair use defense to a trademark infringement claim:

"The Court ruled that a party asserting the defense need not entirely negate the likelihood that consumers will be confused about the origin of the goods or services affected. K.P. Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. ___ (2004). However, the Court conceded that a likelihood of confusion may be relevant in a fair use defense, and left open questions as to the degree of confusion that would be intolerable, whether the strength of plaintiff’s mark and the commercial justification for defendant’s use of the mark should be assessed in determining fair use, and whether the "used fairly" requirement in � 1115(b)(4) of the Lanham Act demands only that the descriptive term describe the goods accurately."

Link: Trademark Infringement and the Fair Use Defense from Mondaq (free registration required).