Fair Use Defense Permits Some Likelihood of Confusion

In KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc. (December 8, 2004), the U.S. Supreme Court held that a party raising the statutory affirmative defense of fair use to a claim of trademark infringement (over the term "micro color") 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. Rather, the burden of proving likelihood of confusion rests with the plaintiff, and the fair use defendant has no free-standing need to show confusion. Some possibility of consumer confusion is compatible with fair use.