— (a) use in commerce any reproduction, counterfeit, copy, or color-able imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; ... shall be liable in a civil action by the registrant for the remedies hereinafter provided. 15 U.S.C. § 1114(l)(a). 27 . There is some dispute about whether "nominative fair use” is properly characterized as an affirmative defense or as a substitute for the “likelihood of confusion” inquiry (which itself is included in the second prong of the Second Circuit’s two-pronged test). Compare Century 21 Real Estate Corp. v. Lendingtree, Inc., 425 F.3d 211, 217-224 (3d Cir.2005) (<HOLDING>), with Playboy Enters., Inc. v. Welles, 279
recognizing the underlying principles of nominative fair use holding that nominative fair use is an affirmative defense to a prima facie case of likelihood of confusion similar to the fair use defense holding that the nominative fair use factors replace the traditional sleekcraft factors for likelihood of confusion where nominative fair use is at issue recognizing nominative fair use as an affirmative defense to trademark infringement holding that fair use is an affirmative defense