2005 • Volume 30 • Number 3

KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.: an Analysis of the Fair Use Defense

Christopher D. Olszyk, Jr.

The U.S. Supreme Court has yet again been forced to mitigate the Ninth Circuit’s creative interpretation of statutory law. In KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., decided in 2004, the Supreme Court was faced with a circuit split over the Lanham Act’s fair use defense. In a decision that failed to rock the earth from its axis, the Court sided with a strict interpretation of the statute and disregarded the Ninth Circuit’s two-part fair use analysis as inconsistent with the Lanham Act.

This note analyzes the competing fair use defense tests in effect across the circuits, the rationale employed by the Supreme Court in reaching its decision in KP, and an analysis of some of the more recent trademark and intellectual property cases before the Court. These decisions prompted a further return to strict construction and an abandonment of some more creative approaches to statutory interpretation. In sum, while the following decision came as little surprise to those following the Supreme Court, the case stands for a continued emphasis by the Court that the lower courts comply strictly with the letter of the statute. The Supreme Court also seeks to give further notice and warning to those intellectual property owners and attorneys who have continued to stretch these laws to their advantage.