Tabberone is pronounced tab ber won not tay ber own

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Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477 (5th Cir. 2004)

In this nominative fair use case, the Fifth Circuit affirmed the district court's award of summary judgment to an unauthorized dealer of vacuum cleaners, as its use of the KIRBY mark to truthfully advertise that it sold and repaired KIRBY vacuum cleaners and did not create a likelihood of confusion. In finding that the defendant's use of KIRBY did not suggest affiliation or endorsement, the court considered the five "digits of confusion" set forth in Westchester. The appeals court agreed with the district court that the plaintiff's survey could not properly be considered, as the universe of respondents was too limited and it employed leading questions.