Some Consumer Confusion OK In Fair-Use Trademark Defenses, U.S. Supreme Court Rules

Law360, New York (December 9, 2004, 12:00 AM EST) -- In a landmark decision that could raise the bar for plaintiffs in federal trademark lawsuits, the U.S. Supreme Court has ruled that the existence of some consumer confusion should not completely bar a fair-use defense.

“Since the burden of proving likelihood of confusion rests with the plaintiff, and the fair use defendant has no free-standing need to show confusion unlikely, the Court recognizes (contrary to the Ninth Circuit’s view) that some possibility of consumer confusion is compatible with fair use,” Justice David H. Souter wrote for...
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