KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.
Petitioner used the term "micro color" to sell its makeup since 1990 or 1991. In 1992, respondents applied for registration of a trademark comprising "Micro Colors" in white on a black square with a green bar between the words. This was granted in 1993 and became incontestable in 1999. Also in 1999, petitioner produced a 10-page brochure with "micro-color" in large, stylized, letters. Respondents demanded that petitioner stop using the term, but petitioner filed suit itself, seeking a declaratory judgment approving its use of the term.
District court held that petitioner was acting in fair use, because it was only using the term to describe its goods, not as a mark, and was acting in good faith because it used the term "microcolor" continuously since before respondents used the two-word, plural form.
Court of appeals thought fair use could not be found if consumer confusion was probable and apparently lade petitioner with the burden of showing otherwise.
Does the defense of fair use require the defendant asserting it to prove that it's use of the mark is not likely to cause consumer confusion?
If Congress meant to require defendants to prove that their uses were not likely to cause consumer confusion, they probably would have written that, like in the section before, instead of writing, "used fairly." Therefore, it is not plausible to assume they intended such a meaning.
Plaintiffs have the burden of proving that the defendants' uses are likely to cause consumer confusion. It does not make any sense to have a defense that requires the defendant to prove the opposite after the plaintiff has already proved it. If the defendant could do that, then he could defeat the case without the defense.
The fair use defense does not require showing that consumer confusion was not likely.