KP Permanent Make-up, Inc. v. Lasting Impression I, Inc

Facts

KP Permanent Mark-Up, Inc. (Plaintiff), a seller of permanent makeup, uses the phrase “micro color” to market and sell its products.  Plaintiff claimed it first used “micro color.”  After that first use date, Defendant applied for and obtained trademark registration of the phrase “micro colors.”  That registration then became incontestable.  Plaintiff, after the date of incontestability, produced an advertising brochure using the phrase “micro color.”  Plaintiff filed a declaratory judgment action against Defendant asking the court to declare no infringement existed.  Lasting counterclaimed for trademark infringement.  Plaintiff filed a motion for summary judgment on the counterclaim based on the “fair use” defense.  The tc granted Plaintiff’s motion and Defendant appealed.  The appellate court determined the trial court should have considered the likelihood of confusion and reversed the judgment.  Plaintiff petitioned for a writ of certiorari, which the United States Supreme Court granted on the issue of which party had the burden of proof to demonstrate likelihood of confusion.