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"The only thing necessary for the triumph of evil is for good men to do nothing"
Edmund Burke

[page 1036]
According to Marylander, the survey results strongly suggested that there was a likelihood of confusion among consumers between Fortune's DELICIOUS shoes and Victoria Secret's "Delicious" tank top. He based this conclusion on three principal [page 1037] factors: (1) the disparity between the amount of confusion in the test group and the control group (11%); (2) the unusually high disparity between those who believed the products came from the same company (28%); and (3) the fact that the disparity in confusion levels would have been higher if respondents had not seen "beauty rush" in the back collar, as was the case for those consumers who only saw the tank top on models or mannequins.

The district court excluded the Marylander survey because the survey compared the products side-by-side, failed to replicate real world conditions, failed to properly screen participants, and was "highly suggestive." The district court supported most of its reasoning by reference to unpublished district court decisions, only one of which even falls within the Ninth Circuit. The court's one citation to Ninth Circuit precedent, moreover, is not helpful. In support of its conclusion that the survey should not have compared the products "side-by-side," the district court cited our decision in Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817 (9th Cir.1980), in which we noted that "[i]t is axiomatic in trademark law that `side-by-side' comparison is not the test." Id. at 822. But that statement, far from setting forth a standard for admitting survey evidence, merely provided support for our recognition of the possibility of post-sale confusion. See id. at 822 ("Wrangler's use of its projecting label is likely to cause confusion among prospective purchasers who carry even an imperfect recollection of Strauss's mark and who observe Wrangler's projecting label after the point of sale. It is axiomatic in trademark law that `side-by-side' comparison is not the test." (emphasis added)). Indeed, the question of the admissibility of survey evidence nowhere surfaced in Levi Strauss. What makes the district court's misuse of Levi Strauss even more glaring is its failure to mention even one of the numerous cases in which we have held that survey evidence should be admitted "as long as [it is] conducted according to accepted principles and [is] relevant." Wendt, 125 F.3d at 814. In sum, we conclude that the district court abused its discretion in excluding the survey because Marylander appears to have conducted the survey in accordance with accepted principles, and because the results of the survey are relevant to the ultimate question whether Victoria's Secret's use of "Delicious" was likely to confuse consumers.


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