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The U.S. Supreme Court on Dec. 8 ruled unanimously that the law tolerates “a certain degree of confusion on the part of consumers,” a view favoring alleged trademark infringers. But it also gave trademark holders a partial victory, holding that evidence of likely consumer confusion can be introduced by trademark holders in suing infringers. KP Permanent Make-up Inc. v. Lasting Impression I Inc., No. 03-409. In 1993, Lasting Impression had trademarked the word “microcolor” to describe its permanent makeup products. KP, a competitor, also used the term. A California federal judge ruled that KP had used the term descriptively and in good faith, amounting to a “fair use.” The 9th U.S. Circuit Court of Appeals reversed, finding that no fair use was possible when there is a possibility of consumer confusion. The court said it was KP’s burden to prove that its use of Lasting Impression’s trademarked term would not produce confusion. Vacating and remanding, Justice David Souter, writing for the court, said that since “the burden of proving likelihood of confusion rests with the [trademark holder], and the fair use defendant has no free-standing need to show confusion unlikely, it follows . . . that some possibility of consumer confusion must be compatible with fair use.” The justices on Dec. 7 ruled, 8-1, against Kansas in its attempt to get $24 million more from Colorado in its long dispute over the Arkansas River. Kansas v. Colorado, No. 105, Orig. The high court had ruled in 1995 that Colorado took water rightfully belonging to Kansas. Now the court was deciding whether Colorado must pay damages and interest in the amount of $29 million or $53 million. The lesser amount was recommended by the special master in the case, and includes interest dating to 1985 when Kansas filed the suit. The greater amount was sought by Kansas seeking to recover interest dating to 1950. Refusing Kansas’ request, Justice Stephen Breyer, writing for the court, said that in holding Colorado responsible for diverting the river, the court “did not seek to provide compensation for all of Kansas’ lost investment opportunities; rather, it sought to weigh the equities.” Justice John Paul Stevens dissented. -ALM, AP

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