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In KP Permanent Make-up, Inc. v. Lasting Impression I, Inc., the United States Supreme Court ruled that a defendant in a trademark infringement action is not required to prove an absence of confusion to successfully assert the fair use affirmative defense. While most observers and interested parties expected the Court to rule as it did, the ruling further obfuscated trademark law, doing little to clarify the relation of “likelihood of confusion” to fair use. The opinion overturned a Ninth Circuit decision and rejected the notion that fair use and consumer confusion cannot co-exist. The opinion did not, however, foreclose the consideration of likelihood of confusion in the face of a successful fair use defense. This note reviews basic trademark concepts applicable to the fair use defense in Part II; examines the factual background of the case in Part III; discusses the District and Appellate Court holdings in Parts IV and V; and analyzes the Supreme Court opinion and considers the fair use questions that were unasked and unanswered in Part VI.

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