KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.
United States Supreme Court
543 U.S. 111 (2004)
KP Permanent Make-Up, Inc. (plaintiff) began using the descriptive term "microcolor" in its permanent-makeup business around 1990. Lasting Impression I, Inc. (defendant) later registered "microcolor" as a trademark in 1993, and that registration became incontestable in 1999. KP sued for a declaratory judgment that its use wasn't infringement, and Lasting counterclaimed for infringement; KP raised fair use as its defense. The district court granted KP summary judgment on the counterclaim, but the Ninth Circuit reversed, holding KP had failed to carry a burden of negating any likelihood that its use would confuse consumers about the origin of the goods.
Whether a party raising the defense of fair use to a claim of trademark infringement has a burden to negate any likelihood that the practice complained of will confuse consumers about the origin of the goods or services affected.