Fair Use Defense to Trademark Infringement Did Not Require Proof of Non-Confusion

摘要

In this case, the petitioner KP Permanent Make-Up, Inc., and the respondents (collectively Lasting) all used the term "micro color" (as one word or two, singular or plu- ral) in marketing permanent cosmetic makeup. [KP Permanent Make-up, Inc. v. Lasting Impression I, Inc., No. 03-409 (US Sup. Ct. 12/04/2004), available at http:www. supremecourtus.gov/opinions/03-409.pdf]. KP had used the single-word version since 1990 or 1991. In 1992, Lasting registered a trademark that included the words "Micro Colors" under 15 U.S.C. § 1051, and in 1999, the registration became incontestable under 15 U.S.C. § 1065. When Lasting demanded that KP stop using the word "microcolor," KP sued for declaratory relief. Lasting counter-claimed, alleging that KP had infringed Lasting's trademark. KP responded by asserting the statutory affirmative defense of fair use of the mark.