KP Permanent Make-up, Inc. v. Lasting Impressions, Inc.
KP Permanent Make-up, Inc. v. Lasting Impressions, Inc., MCN International, Inc. tests whether a showing of the absence of a likelihood of confusion is necessary before a defendant may invoke the classic fair use defense in a trademark infringement suit. By statute, incorporating cases at common law, there appears to be no such requirement. In this case, the Court will determine whether the Ninth Circuit erred in applying such a rule.
Questions as Framed for the Court by the Parties
Does the classic fair use defense to trademark infringement require the party asserting the defense to demonstrate an absence of likelihood of confusion, as is the rule in the Ninth Circuit, or is Fair Use an absolute defense, irrespective of whether or not confusion may result, as is the rule in other Circuits?
KP Permanent Make-up, Inc. ("KP") and Lasting Impressions, Inc. ("LI") are direct competitors in the business of supplying and distributing pigment colors for use in permanent make-up. KP Permanent Make-up, Inc. v. Lasting Impression, Inc., 328 F.3d 1061, 1065 (9th Cir. 2001).
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