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Volume19
Year2010
TitleCiociola v. Harley-Davidson Inc.: Classic Fair Use in Summary Judgment Practice
Author(s)James Abe & Paul Horton
First Page392
AbstractWhat about summary judgment practice in the circuits that have always separated "confusion" inquiry from "fair use" inquiry? Will they, after KP Permanent, pay more attention than before to "the extent of any likely consumer confusion in assessing whether a defendant's use is objectively fair"? We provide anecdotal evidence that they will not. Indeed, the summary judgment granted in the Scarecrow case suggests that courts may take the Supreme Court's decision as an invitation to disregard confusion evidence more than before in dealing with the fair-use defense.